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People v. Baynes

OPINION FILED DECEMBER 4, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

EVERETT BAYNES, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Monroe County, the Hon. Alvin H. Maeys, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 29, 1982.

On February 19, 1978, at approximately 1:30 a.m., Michael Walsh, driving along a country road in Monroe County in a 1972 pickup truck, had an accident. Walsh and his companions were driven to the hospital in a car which had been following them, and the pickup truck was left alongside the road. When Walsh returned to his truck the next day he discovered a tachometer, two stereo speakers and three tires missing.

The defendant, Everett Baynes, was charged with burglary of the tachometer and burglary and misdemeanor theft of the two stereo speakers. Following a plea of not guilty the defendant was tried by a Monroe County jury on May 15, 1978. He was found guilty of one count of burglary of the tachometer and was acquitted on the other count of burglary and the count of misdemeanor theft of the stereo speakers. On August 31, 1978, he was sentenced to a five-year term of imprisonment.

Prior to trial the defendant took a polygraph examination pursuant to a stipulation signed by the State's Attorney, defense counsel and the defendant. The trial court received into evidence the testimony of a polygraph examiner who stated that in his opinion the defendant was not telling the truth when he answered certain relevant questions during a polygraph examination. The defendant made no objection to the examiner's testimony at trial or in his post-trial motion. The appellate court found that such testimony did not have an obvious prejudicial impact on the jury and did not constitute reversible error. The court affirmed the conviction. (87 Ill. App.3d 1000.) The defendant appealed that judgment, and we granted leave to appeal.

It is a general rule that an objection to the introduction of evidence must be made at the time of admission or it will be treated as waived. (People v. Roberts (1979), 75 Ill.2d 1, 6; People v. Williams (1963), 28 Ill.2d 114, 116; People v. Arnold (1963), 27 Ill.2d 294, 297; People v. Luckett (1962), 24 Ill.2d 550, 554.) If the error is not raised in a post-trial motion it is waived on appeal. (People v. Tannenbaum (1980), 82 Ill.2d 177; People v. Foster (1979), 76 Ill.2d 365; People v. Edwards (1978), 74 Ill.2d 1, cert. denied (1979), 442 U.S. 931, 61 L.Ed.2d 299, 99 S.Ct. 2862.) However, this rule is one of administration and does not operate as a jurisdictional bar. (People v. Burson (1957), 11 Ill.2d 360, 370.) Error that rises to the level of plain error is considered by this court despite the defendant's failure to record objections and properly preserve the record for review. People v. Jackson (1981), 84 Ill.2d 350, 359.

One purpose of the plain error rule is to afford certain protections to the accused. In order to prevent a serious injustice being done to a defendant, the error should be corrected. The other purpose of the plain error rule is to protect and preserve the integrity and reputation of the judicial process.

Objections must be recorded to be properly preserved for review. (People v. Coles (1979), 74 Ill.2d 393.) If a party does not adhere to that rule he has effectively waived his rights to appeal where there has been no indication that the party found fault with the admissibility of the evidence at the time of trial. If the admission of evidence constitutes plain error resulting in a miscarriage of justice upon a defendant or a tainting of the integrity and reputation of the judicial process, then it is considered although such error was not brought to the attention of the trial court. Thus the plain error rule works, in fact, as an exception to the waiver rule which is invoked upon a party's failure to conform to a primary rule of appellate procedure. Rule 615(a) states: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." (73 Ill.2d R. 615(a).) To circumvent the general waiver rule the record must clearly show the commission of an error that substantially affected a defendant's rights. People v. Jackson (1981), 84 Ill.2d 350, 359; People v. Foster (1979), 76 Ill.2d 365, 380; People v. Coles (1979), 74 Ill.2d 393, 397.

This court may exercise its discretion in taking notice of errors which deprive the accused of a fair and impartial trial. (People v. Pickett (1973), 54 Ill.2d 280.) The court must ask, even in the absence of objection at trial, if the defendant was prejudiced to the extent that he was prevented from receiving a fair trial. If so, error may be considered. (People v. Jackson (1981), 84 Ill.2d 350.) To determine whether the defendant was prevented from receiving a fair trial the court evaluates the evidence to see if it is close. No court wants to take a chance that an innocent person may have been convicted by an obvious error which was not preserved for the reviewing court. (People v. Carlson (1980), 79 Ill.2d 564, 576; People v. Pickett (1973), 54 Ill.2d 280; People v. Bradley (1964), 30 Ill.2d 597.) In its review under this analysis the court must weigh evidence to see if it is closely balanced.

Everett Baynes was convicted of burglary under a theory of accountability. The chief witnesses for the State were David McCoombe and Mark Barnett, both of whom implicated the defendant, and both of whom were also charged with offenses involving the disabled truck. The charge against McCoombe was reduced from felony burglary to misdemeanor theft. McCoombe was to pay a $200 fine plus court costs. The record does not show Barnett's plea. It does, however, show that his jail sentence amounted to three days. As participants in the crime the testimony of these accomplices must be examined carefully and cautiously. (People v. Wilson (1977), 66 Ill.2d 346.) Their statements will be looked upon with distrust upon review. People v. Lindgren (1980), 79 Ill.2d 129, 142.

According to the testimony of McCoombe and Barnett it was at the direction of the defendant that McCoombe climbed into the cab of the pickup truck and removed the tachometer. The defendant was positioned down the road at his grandfather's house as a lookout. Prior to the incident, police officer John Koch, investigating the accident, engaged in conversation with the defendant (whom he knew socially). This occurred shortly after the mishap at the scene of the accident. The defendant commented that the tachometer "would look good in his car." Koch responded that "it would look good in the police car or any other car." Later on February 19, 1979, Koch stopped the defendant after he had spun his tires leaving a local gas station. Koch asked the defendant if he knew anything about the tachometer or other items taken from the truck. Baynes responded that he knew where it was but would not tell Koch where. Still later the same day, Baynes brought the tachometer to Koch and told the police officer he had retrieved it from the trunk of a car. The defendant did not identify the car's owner.

When the defendant brought the tachometer in, the deputy sheriff advised Baynes of his Miranda rights and then questioned him. The defendant said that he was parked a short distance down the road when McCoombe drove by and waved the tachometer to him; after that Officer Koch had asked him to bring in the tachometer, and the defendant removed it from a styrofoam cooler in McCoombe's car.

The polygraph examination in question occurred on April 14, 1978, pursuant to a stipulation that the results would be admissible. The examiner testified that the following pertinent questions were asked:

(1) "On or about February 19, 1978, did you show anyone the speakers that had been stolen from the overturned truck?"

(2) "On or about February 19, 1978, did you have in your possession the speakers that were stolen from the overturned truck?"

(3) "On or about February 19, 1978, did you tell McCoombe to take the tach from ...


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