SUPREME COURT OF ILLINOIS
522 N.E.2d 1124, 122 Ill. 2d 176, 119 Ill. Dec. 265 1988.IL.173
Appeal from the Circuit Court of Peoria County, the Hon. Donald C. Courson, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case. JUSTICE SIMON, Concurring in part and Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
The defendant, Willie Enoch, was charged under an indictment with four counts of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)), and one count each of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10-2), attempted rape (Ill. Rev. Stat. 1983, ch. 38, par. 8-4), and armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2). Following a jury trial in the circuit court of Peoria County, Enoch was acquitted on the charges of armed robbery and murder in the course of armed robbery, but was convicted of all other charges. He waived a jury at the death penalty hearing, and the circuit Judge found the defendant eligible for the death penalty on the basis of the two felony-murder convictions: murder in the course of attempted rape and murder in the course of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)). The Judge found no mitigating factor sufficient to preclude imposition of the death penalty, and sentenced the defendant to death. The sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603.
The victim, Armanda Kay Burns, was a 25-year-old housekeeping supervisor employed by the Methodist Medical Center in Peoria. She lived in a basement apartment near the medical center. On April 22, 1983, several members of the housekeeping staff, including the victim, were gathered in the victim's office at the hospital at about 11:30 p.m. All were working the 3 p.m. to 11:45 p.m. shift. Three staff members testified that the defendant entered the office and asked where his brother was. They also saw the defendant speaking with the victim. As two of these witnesses left the hospital at the end of the work shift, they saw the victim and the defendant walking together toward her apartment. One witness testified that he saw them within 100 feet of the victim's dwelling and that she waved at him when he blew his horn.
Derek Proctor testified that the victim had been his girlfriend for about eight months. On April 22, 1983, they had plans to go out with the victim's brother and sister-in-law after the victim finished work. Proctor arrived at the victim's apartment about midnight and rang the doorbell several times. Receiving no response, he waited 5 to 10 minutes and then walked to the hospital, where he asked a security guard to check whether the victim was still there. When told she was not, Proctor called her apartment from the hospital but got no answer. He then returned to the apartment, rang the doorbell again. Receiving no answer, he walked across the street to buy a pack of cigarettes. He returned to the apartment a few minutes later, rang the doorbell again several times. Getting no response, he sat down on the curb to wait.
A few minutes later, at about 12:45 a.m., he heard the door open. He turned and saw the defendant, wearing a blue pin-striped coat and carrying a white shirt in his hands, coming out. Proctor asked the defendant if the victim was in her apartment and the defendant replied that she was. Proctor rang the doorbell again and, receiving no response, ran after the defendant, whom he saw running across a field near the medical center. Proctor testified that he recognized the defendant as the person who had come to the victim's door the previous night asking to use the telephone while Proctor was watching television.
Proctor returned again to the apartment and knocked on all the windows. He saw that lights were on in the kitchen and bedroom. After looking unsuccessfully for the defendant at several clubs in the area, he went to the home of the victim's brother, and he was accompanied back to the apartment by her brother and sister-in-law, arriving at about 2:15 a.m. They knocked at the door, and receiving no answer, kicked in the basement window. They saw the apartment in disarray and the victim's body on the bedroom floor. A hospital security guard and the Peoria police who were summoned testified that they observed the victim with her hands bound behind her back with wire, a laceration across her throat, numerous stab wounds in her chest, and a cut from her sternum to her pubic bone. An autopsy revealed that the cause of death was a stab wound in the victim's back.
Louise Pate, the defendant's girlfriend, testified that in the early morning of April 23, 1983, the defendant returned to their apartment, went into the bathroom and turned on the water. He then left the apartment to get some cigarettes. When he returned he told her that he had killed Kay Burns that night. He said that he had "cut her throat and heart out," and that on the way out of her apartment he had bumped into the victim's boyfriend. The defendant told Pate that he had just burned the pants he had been wearing in an incinerator outside.
After the trial had started, defendant moved to suppress statements he had made following his arrest. Detective Charles Cannon testified at a suppression hearing that, after he arrested the defendant at Pate's apartment, the defendant was taken to the Peoria police department, where he was interviewed by Detective Sammie Hoskins and himself. While he was being read his Miranda rights, the defendant requested an attorney. Detective Cannon continued reading the Miranda warnings and, when he finished, asked whether the defendant understood his rights. The defendant said he did and he still wanted an attorney. Detective Cannon told defendant that no more questions would be asked and that he would explain the procedure for obtaining an attorney. He then told the defendant that he would be taken to the county jail and booked for murder. The defendant asked whose murder he was being charged with and the officer told him the murder of Kay Burns. The defendant replied, "Oh no, not Kay Burns," and told the officers he had seen her at the hospital the night before, had walked with her to within a block of her apartment, and had then gone home. The officer then told defendant that a witness had seen him leaving her apartment, and again stated that no questions would be asked of defendant. The circuit court found that the defendant's statements were voluntary utterances, and not the result of questioning or its functional equivalent. The court therefore denied the defendant's motion to suppress the statements, and Officer Hoskins testified to the statements at trial.
Following the suppression hearing, the State made an offer of proof, asking that evidence of other crimes unrelated to the murder of Kay Burns be admitted to show that the defendant had the "intent and design" to commit rape against the victim. Over defense objections, the court admitted evidence concerning two prior incidents. As to the first, Louella Burnside testified that on March 6, 1983, the defendant raped her. She said that having locked herself out of her apartment at about 4 a.m., she was walking in her neighborhood looking for her husband, who had her keys, when she met the defendant. He pulled a knife, stabbed her in the back, pulled her into a garage, threatened to cut her throat, told her to remove her clothes, and then raped her. After raping her, he told her he would tie her hands behind her back loosely so that she could escape after a few minutes. He then ripped her jacket and used it to tie her hands and gag her. After the defendant left, she escaped and called the police. She identified an army fatigue jacket recovered in Pate's apartment as the one defendant was wearing on the night of the incident.
Marilyn McClain testified to a second incident in which the defendant knocked at her door and asked where his brother lived. When she said she did not know, he asked for a glass of water. As she returned the glass to the kitchen, the defendant entered the apartment and locked the door. He approached her with a pocket knife and cut her stomach, placed her on the couch and tied her hands behind her back and gagged her with a towel he had ripped up. He asked if there was any money in the apartment and whether she "had her period." While he was searching the apartment, she got her hands free and ran to the door, calling for help from her neighbor. The neighbor testified that, hearing McClain's screams, she looked out of her apartment and saw the defendant running down the stairs.
The defendant did not take the stand. The defense presented testimony that the defendant was wearing a different shirt from the one he was alleged to have worn on the night of the incident; that Proctor, the victim's boyfriend, had told a hospital security guard at about 12:10 a.m. on the night of the incident that there was a window broken at the victim's apartment and that he had seen a man leaving her apartment; and that Pate, the defendant's girlfriend, had told the defendant's mother that she wanted to change her grand jury testimony implicating the defendant and had contacted a person for legal advice regarding the penalty for perjury. The jury found the defendant guilty of murder, aggravated kidnapping, and attempted rape, and of two counts of felony murder based on the aggravated kidnapping and attempted rape charges.
Defendant raises numerous issues before this court, including that his kidnapping conviction was improper because the same act which comprised the aggravated kidnapping was also one of the two acts which comprised the attempted rape; that the prosecutor's opening argument was improper; that defendant did not knowingly and intelligently waive his right to a jury sentencing; and that the trial court erred by erroneously admitting evidence of a prior rape and a prior attempted rape, by excluding a paragraph of the pattern jury instructions, by allowing a police detective to assist the State in selecting the jury, and by finding that the defendant presents a clear and present danger in prison.
Since defendant failed to file a post-trial motion as required by the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 116-1), the State argues that these issues have been waived. We have often stated the general rule that the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal. (People v. Shum (1987), 117 Ill. 2d 317; People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Porter (1986), 111 Ill. 2d 386, 399; People v. Caballero (1984), 102 Ill. 2d 23, 31.) We stated the reasons for the waiver rule in Caballero :
"Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance." 102 Ill. 2d 23, 31-32.
The Dissent (122 Ill. 2d at 204-06 (Simon, J., Dissenting)) insists, as defense counsel often do, that it is not necessary, in order to preserve a question for review, that there be both an objection to the evidence at trial and a written post-trial motion raising the question of the objected-to evidence. The Dissent argues that it is sufficient if the issue is raised either during trial or in a post-trial motion. This is not the law in this State. Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. The Dissent cites People v. Black (1972), 52 Ill. 2d 544, 551, and People v. Needham (1961), 22 Ill. 2d 258, 259, as holding that the absence of both a trial objection and a post-trial motion constitutes waiver. This assertion simply inverts the holdings of those cases, which is that the presence of both a trial objection and a written post-trial motion raising the issue are necessary to preserve an issue for review. This court stated in People v. Carlson (1980), 79 Ill. 2d 564, 577, and People v. Roberts (1979), 75 Ill. 2d 1, 11, the reason for the waiver rule when no objection to the alleged error was made during trial.
The requirement that the alleged error be included in a post-trial motion has a different basis from the requirement that an objection be made at trial. The requirement for a written post-trial motion is statutory, and the statute requires that a written motion for a new trial shall be filed by the defendant and that the motion for a new trial shall specify the grounds therefor. (Ill. Rev. Stat. 1983, ch. 38, par. 116-1.) A written motion for a new trial may include not only alleged trial errors and errors in instructions that have been properly preserved by timely objection, but also other grounds for a new trial such as newly discovered evidence. Failure to specify grounds for a new trial in writing in a motion for a new trial has been held by this court to constitute waiver of the issue on the review in the absence of plain error. (People v. Pickett (1973), 54 Ill. 2d 280.) Simply because an objection to evidence may have been made during the trial does not justify ignoring the clear mandate of the statute that the question be set forth in writing in the motion for a new trial.
The Dissent has read section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 116-1) as not requiring the filing of a written motion for a new trial. The Dissent contends that this section of the Code "merely mandates the timing and the contents of a motion for those who choose to file a motion for a new trial." (122 Ill. 2d at 207 (Simon, J., Dissenting).) This is a strained construction of the statute. There is no authority supporting this position. Prior to 1963, a motion for a new trial was not required when the trial was before the court and not a jury, but the language of section 116-1 has changed the law in that respect and a written motion for a new trial is now required in both jury and non-jury cases. See Leighton, Post-Conviction Remedies in Illinois Criminal Procedure, 1966 U. Ill. L.F. 540.
It has been held that the requirement of a written motion can be waived if a defendant makes an oral motion for a new trial and the State does not object. The defendant may then avail himself of any ground for a new trial which might appear in the record. This apparent circumvention of the requirement that the motion for a new trial be in writing and specify the grounds is based on the concept of waiver. Since the State failed to object to the oral motion, it has waived the requirements of the statute. (People v. Flynn (1956), 8 Ill. 2d 116, 118-20.) However, when no motion for a new trial is made, the first opportunity that the State has to object to the defendant's failure to comply with the statute is when the defendant raises issues on appeal.
In People v. Irwin (1965), 32 Ill. 2d 441, the defendant had not raised in his motion for a new trial any of the questions raised on review. This court held all of those questions were waived. The court noted that requiring the defendant to specify alleged errors in a motion for a new trial may save the delay and expense inherent in an appeal. The requirement also focuses the attention of the trial Judge upon those aspects of the proceedings of which the defendant complains. The court concluded: "In short, we believe this waiver rule a salutary one serving a legitimate State interest in that it tends to eliminate unnecessary reviews and reversals." People v. Irwin, 32 Ill. 2d at 444.
The Dissent further contends that our construction of section 116 -- 1 conflicts with our Rule 366. There is no such conflict. Rule 366 relates to civil appeals. Rule 612 lists the civil appeal rules which apply to criminal appeals. Rule 365 and Rule 367 are listed as applying to criminal appeals. However, Rule 366 is not. The Dissent points out that in People v. Lilly (1974), 56 Ill. 2d 493, People v. Murrell (1975), 60 Ill. 2d 287, and People v. Scott (1977), 69 Ill. 2d 85, this court applied Rule 366 to criminal appeals.
The above three criminal cases, which applied Rule 366, all were concerned with the power of a reviewing court and entered orders under Rule 366(a). The powers enumerated in Rule 366(a) for civil appeals are similar to those set out in Rule 615(b), which pertains to criminal appeals. In fact, in People v. Scott, this court noted that in People v. Lilly, Rule 366 was applied in vacating an incomplete judgment in a criminal case, and in Scott, we followed Lilly. However, we also stated in Scott that the authority for such an order as was entered could also be found under Rule 615(b).
Rule 366(b), which the Dissent would have us apply in this case, relates to the scope of review in civil cases. The Dissent has cited no case in which Rule 366(b) has been applied to a criminal appeal. The counterpart in criminal cases to the provisions of Rule 366(b), which pertains to the scope of review in civil cases, is found in Rule 615(a). That rule provides that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. (87 Ill. 2d R. 615(a).) Thus, under Rule 615(a), the only time, in a criminal appeal, that a court of review may apply the broad scope of review pertaining to civil appeals found in Rule 366(b)(3)(ii), as the Dissent would have us do (neither the filing of, nor the failure to file a post-trial motion, limits the scope of review), is when plain error is involved. This is in accord with the holding of this opinion wherein, as we set out below, plain error is one of the three exceptions to the waiver rule in criminal cases where no motion for a new trial has been filed.
Our constitution requires that this court review all cases in which a sentence of death is imposed. (Ill. Const. 1970, art. VI, § 4(b).) However, our constitutional obligation to review death penalty cases does not require us to review every issue raised on appeal when the issues are not properly preserved by an objection in the trial court and a written post-trial motion. In Porter and Caballero this court noted that although death penalty cases are required by our constitution to be reviewed by this court, trial counsel nonetheless has an obligation to see that the statute requiring a post-trial motion is complied with so that the review will be limited to issues of some significance. Although we have not heretofore defined the limits of such a review, we now hold that when the defendant fails to comply with the statutory requirement to file a post-trial motion, our review will be limited to constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction hearing petition (Ill. Rev. Stat. 1983, ch. 38, par. 122-1), sufficiency of the evidence, and plain error. By limiting our review in cases where no post-trial motion is filed, we will promote judicial economy and finality of judgments. We will, at the same time, be protecting the integrity of the judicial system and the rights of criminal defendants.
The Dissent characterizes our defining of the extent of our review of capital cases in the absence of a written motion for a new trial as "new" and "unprecedented" and as having been without warning. Quite to the contrary, the procedure we outline is in fact an expansion of the right of review previously allowed by this court when no written post-trial motion has been filed. As stated in People v. Pickett (1973), 54 Ill. 2d 280, such a failure has, in the past, constituted waiver, except in cases involving plain error. The Dissent relies upon People v. Porter (1986), 111 Ill. 2d 386, and People v. Caballero (1984), 102 Ill. 2d 23, as "at least implicitly recognizing that [the court's] constitutional duty to review capital cases was of greater import than the waiver doctrine." (122 Ill. 2d at 205 (Simon, J., Dissenting).) In Caballero (a capital case), no post-trial motion was filed, and the court did not deny review because of a constitutional provision for automatic review by this court in death penalty cases. (Ill. Const. 1970, art. VI, § 4(b).) However, this court stated that regardless of our duty to review such cases, trial counsel has the obligation to comply with the statutory requirements with regard to written post-trial motions, and indicated that review should be limited to issues of some significance. Clearly, Caballero cannot be viewed as giving an assurance to convicted defendants of the right of unlimited review in all capital cases, when no post-trial motion has been filed. Rather, it should be viewed as a warning that post-trial motions should be filed in such cases and that review should be limited to "issues of some significance."
People v. Porter, which was also cited by the Dissent, is not in point, because in that case a post-trial motion was filed. The motion raised the general issue of whether the defendant was denied a fair trial by an impartial jury, and referred to the presence on the jury of a woman who attended the same church as the mother of the victim but did not question the adequacy of the voir dire examination of the jury. In Porter, this court again warned that in spite of its constitutional duty to review capital cases, trial counsel continues to have the obligation to comply with the statutory provisions governing motions for a new trial. In view of the warnings of Caballero and Porter and the previous holding of People v. Pickett, it cannot be said that the limits of review in capital cases, announced in this case, where no post-trial motion is filed, is "without warning" or is "new and unprecedented," as characterized in the Dissent.
Turning now to the issues that fall within these categories, defendant argues that the admission into evidence of statements he made to the police officer after he requested an attorney violated his fifth amendment privilege against self-incrimination. The State responds that defendant's statements were properly admitted because they were voluntary utterances and not the result of interrogation.
It is undisputed that during the reading of his Miranda rights and again afterwards, defendant requested an attorney. After reading all of the Miranda warnings, the interrogating officer told defendant that he ...