APPEAL from the Circuit Court of Wayne County; the Hon. ROBERT
W. WHITMER, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Herman Eugene Harrawood, was charged in the circuit court of Wayne County with the offense of unlawful delivery of less than 200 grams of substance containing phencyclidine (PCP). Following a jury trial, defendant was found guilty as charged and was sentenced to a term of five years probation conditioned upon a fine of $4,000 and a term of 100 days of periodic imprisonment.
Defendant brings this appeal. The State has moved to dismiss this appeal, relying on People v. Hammond, 48 Ill. App.3d 707, 362 N.E.2d 1361, on the grounds that because defendant failed to file any post-trial motion, written or oral, he waived consideration of all errors herein raised. Defendant has filed an objection to the State's motion, and the matter was taken with the case.
The evidence presented at trial may be briefly stated. On December 30, 1976, two undercover agents of the Department of Law Enforcement, Phillip Sylvester and John Sandusky, were conducting a drug investigation accompanied by an unidentified informant. The three went to a trailer for the purpose of purchasing phencyclidine and there met defendant and Geno Cunningham. The group, including defendant, went to the kitchen area where the agents purchased one gram of the substance from Cunningham. The agents then offered to purchase a second gram of the substance, at which point defendant picked up a plastic bag containing the substance, opened it and held it while Cunningham proceeded to weigh out a second gram. The evidence further showed that the agents had purchased for $130 a total of 2.3 grams of a substance containing phencyclidine.
On appeal, defendant presents the following issues for review: (1) whether the trial court erred in granting the State's motion in limine prohibiting any reference to the fact that defendant's brother, Samuel, had originally been arrested for the instant offense *fn1; (2) whether the court erred in instructing the jury on accountability because defendant was charged as a principal; (3) whether the court erred in admitting in evidence an evidence envelope and an evidence receipt, both of which had not been listed in the State's response to defendant's discovery motion; (4) whether the court abused its discretion in refusing to strike the testimony of the State's chemist because only the chemist's report but not his personal notes had been produced by the State in response to discovery; (5) whether the State failed to prove beyond a reasonable doubt that defendant was not a person authorized by law to deliver controlled substances; and (6) whether the State failed to prove beyond a reasonable doubt that defendant knew the substance involved in the offense to be a controlled substance.
1 Section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 116-1), governing motions for a new trial, provides for a fair and orderly procedure for post-trial review in the trial court allowing claims of error to be passed upon by the court in the best position to do so and, where such claims are meritorious, avoiding the delay and expense inherent in an appeal. (People v. Sweeny, 57 Ill. App.3d 879, 373 N.E.2d 663.) Illinois courts> have long required some form of post-trial review in the trial court in order to preserve allegations of error for the purposes of appeal. Thus it is 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 such as a ground for reversal on appeal. (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 (1971), 29 L.Ed.2d 136, 91 S.Ct. 1658; People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76.) As stated in Sweeny, the purposes of this waiver rule are:
"(1) to insure that the trial court is informed of possible errors so that the court has an opportunity to correct those errors; (2) to give the reviewing court the benefit of the judgment and observations of the trial court with regard to the issues raised on appeal; (3) to prevent a defendant from objecting to that in which he has acquiesced throughout the course of the trial; (4) to eliminate unnecessary reviews and reversals; and (5) to prevent the possibility of unlimited litigation." 57 Ill. App.3d 879, 885, 373 N.E.2d 663, 668.
Exceptions to the application of the waiver rule have been made with regard to allegations of the insufficiency of the evidence which may be raised for the first time on appeal (People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182; People v. Richardson, 49 Ill. App.3d 170, 363 N.E.2d 924), or in those instances in which the allegation of error would not normally be expected to be included in a post-trial motion, such as the allegations of ineffective representation (People v. Pendleton, 52 Ill. App.3d 241, 367 N.E.2d 196; but see People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227). Moreover, under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a)), a reviewing court may, as a matter of grace, elect to take notice of plain errors affecting substantial rights which have not been properly preserved. People v. Pickett.
Where, contrary to the requirements of section 116-1 that the motion be in writing with specificity, a general oral motion for a new trial is made without objection by the State, such has been held to be sufficient to preserve for review all objections otherwise properly appearing upon the record. (People v. Whitehead, 35 Ill.2d 501, 221 N.E.2d 256; People v. Flynn, 8 Ill.2d 116, 133 N.E.2d 257.) On the other hand, where no post-trial motion, either written or oral, is made and the reviewing court finds nothing to consider, a dismissal of the appeal has been held to be appropriate. People v. Hammond, 48 Ill. App.3d 707, 362 N.E.2d 1361.
In the instant case, defendant failed to file any post-trial motion, written or oral, consequently resulting in the State's motion to dismiss now before us. In his objection to the State's motion, defendant argues both the inapplicability and the invalidity of the waiver rule.
2 Turning first to the broader questions raised by defendant, he contends first that a waiver rule under section 116-1 is an unconstitutional legislative infringement of the exclusive judicial power to regulate appeals under article 6 of the Illinois Constitution of 1970. This contention is based on the premise that the waiver rule is a product of section 116-1. It is not. (People v. Sweeny, 57 Ill. App.3d 879, 373 N.E.2d 663.) As we stated in Sweeny:
"Section 116-1 * * * only addresses post-trial procedure in the trial court. It contains no reference to the waiver rule or to appellate procedure and it prescribes no consequences for a failure to comply with its terms. Particularly, it does not mandate the application of the rule of waiver in a reviewing court. * * * [T]he waiver rule is not one created by the statute but rather, is a court-created rule of procedure on appeal." (57 Ill. App.3d 879, 885, 373 N.E.2d 663, 667-68.)
The waiver rule is a product of Illinois case law and it receives implicit recognition and approval in Supreme Court Rule 615(a). Accordingly, we find no merit to this contention.
Defendant further argues that the waiver rule is an invalid restriction on his right to appeal under article 6, section 6 of ...