Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Montgomery
County, the Hon. William D. Kelly, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1986.
The defendant, William Friesland, was tried and convicted of burglary in a jury trial in the circuit court of Montgomery County and was sentenced to 10 years' imprisonment. Defendant appealed to the appellate court contesting the fairness of his trial. The appellate court affirmed the circuit court. (130 Ill. App.3d 595.) We granted the defendant's petition for leave to appeal pursuant to our Rule 315 (87 Ill.2d R. 315).
Prior to his trial, the defendant filed a discovery motion requesting production of Paul A. Seago's mental health records. Seago, who had pleaded guilty to the burglary for which the defendant was being tried, was the State's chief witness against the defendant and intended to testify to the details of the burglary of the tool-supply store, the disposal of the stolen items, and the defendant's participation therein. In his motion, defendant alleged that certain medical reports relating to Seago's mental health for the preceding three years were essential to his being able to confront and impeach Seago.
The appellate court held that the defendant's sixth amendment right to confront the witness against him and his right to a fair trial had not been denied by the circuit court's denial of his motion for production of Seago's mental health records. The appellate court based its holding on People v. Dace (1983), 114 Ill. App.3d 908, aff'd (1984), 104 Ill.2d 96. The defendant had cited Dace to support his position, but the appellate court found it to be distinguishable. The appellate court, in comparing the instant case to Dace, held: (1) that although Seago's testimony was critical, it was not exclusively determinative like the witness' testimony in Dace; (2) that unlike in Dace, in the instant case there was sufficient corroborative circumstantial evidence of defendant's guilt; and (3) that the jury in the instant case did hear substantial evidence of the witness' mental health problems which tended to weaken his credibility, which had not been true in Dace. The appellate court also held that there was nothing which tended to establish that the records sought would be relevant or helpful to defendant's case.
The defendant raises two issues on appeal in this court. The first issue is whether his right to confront the witness against him was denied because of the circuit court's denial of his motion to discover witness Seago's mental health records. The second issue, which is dependent on the disposition of the first issue, is whether the appellate court misinterpreted the harmless error doctrine by failing to require that the State demonstrate that the restriction of the defendant's right to confrontation was harmless beyond a reasonable doubt. In response, the State contends that the defendant waived any claim of error regarding the trial court's denial of his motion for production of Seago's mental health records because he failed to include this alleged error in his written post-trial motion, but that even if the issue was not waived, the motion was properly denied because the defendant failed to make a sufficient showing that Seago's mental health records would have been material for impeachment purposes.
The first issue which we must necessarily address is the State's contention that the defendant has waived the alleged error as to the mental health records by not asserting it in his written post-trial motion for a new trial. We believe that he has.
Where grounds for a new trial are stated in writing, failure to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review, even if it involves a constitutional right. See People v. Caballero (1984), 102 Ill.2d 23, 31; People v. Beasley (1982), 109 Ill. App.3d 446, 449; People v. Watson (1982), 107 Ill. App.3d 691, 695; People v. Black (1982), 107 Ill. App.3d 591, 593; People v. Ortiz (1980), 91 Ill. App.3d 466, 476; People v. Agee (1980), 85 Ill. App.3d 74, 84; People v. Wilkins (1980), 83 Ill. App.3d 41, 44; People v. Spaulding (1979), 68 Ill. App.3d 663, 678; People v. Witted (1979), 79 Ill. App.3d 156, 161; People v. Logan (1979), 78 Ill. App.3d 646, 647; People v. Bach (1979), 74 Ill. App.3d 893, 896; People v. Tate (1978), 64 Ill. App.3d 1, 12; People v. Marshall (1977), 50 Ill. App.3d 615, 623.
Exceptions to this rule have been made with regard to the failure to prove a material allegation of an indictment (People v. Walker (1955), 7 Ill.2d 158, 160), or in those instances in which the allegation of error would not normally be expected to be included in the post-trial motion (such as an allegation of ineffective assistance of counsel) (People v. Pendleton (1977), 52 Ill. App.3d 241, 245), or if a reviewing court elects to take notice of plain errors affecting substantial rights pursuant to our Rule 615(a) (87 Ill.2d R. 615(a)). See People v. Pickett (1973), 54 Ill.2d 280, 282-83.
We do not believe that this case falls into any of the above enumerated exceptions. First, this appeal does not involve a failure to prove a material allegation of an indictment. Second, the alleged error is one that should have properly been raised in the written post-trial motion. And finally, although our Rule 615(a) provides an exception to the waiver rule where there has been plain error (87 Ill.2d R. 615(a)), it "do[es] not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court." People v. Black (1982), 107 Ill. App.3d 591, 593.
Although "[t]he doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that the accused is denied a fair trial" (People v. Black (1982), 107 Ill. App.3d 591, 593), we do not believe that we should apply the doctrine in this case. The reasons we believe that the doctrine should not be applied are: (1) because it is speculative whether what is contained in this witness' privileged mental health records (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 810) may be helpful to defendant's case (especially in light of the fact that the jury already heard evidence of the witness' mental health problems); and (2) because we do not believe that the evidence in this case is closely balanced or that the alleged error is of such a magnitude that the defendant was denied a fair trial. Therefore, we see no justification for dispensing with the general waiver rule under these facts.
This court has stated that "[b]efore plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed." (People v. Precup (1978), 73 Ill.2d 7, 17.) We do not believe that denial of the defendant's motion for production of this witness' privileged mental health records is a plainly apparent error affecting substantial rights.
In referring to the rule requiring inclusion of all alleged errors in the written post-trial ...