Appeal from the Circuit Court of Ogle County. No. 84-CF-58. Honorable F. Lawrence Lenz, Judge, Presiding.
As Modified August 17, 1994. Petition for Leave to Appeal Denied December 6, 1994.
Colwell, Quetsch, PECCARELLI
The opinion of the court was delivered by: Colwell
JUSTICE COLWELL delivered the opinion of the court:
Defendant, Christopher Lamb, was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a) (now 720 ILCS 5/19-3(a) (West 1992))). Defendant contends on appeal that his right to have the trial Judge review the sufficiency of the evidence during his post-trial motion was denied since the trial Judge erroneously believed that he had no authority to enter an acquittal at that stage of the proceedings. We reverse.
Defendant was arrested in June 1984 and charged with participating in a residential burglary. Defendant gave a statement to Sergeant Richard Wilkinson of the Ogle County sheriff's department. Defendant also read a prepared statement at the grand jury proceedings in which he admitted that he was at the scene of the burglary with the alleged perpetrators but had not participated in the offense. The grand jury indicted defendant for the residential burglary.
Defendant was tried in absentia on January 7, 1985. The trial Judge suppressed defendant's statement to Wilkinson but allowed the State to introduce into evidence portions of defendant's grand jury testimony concerning the statement to Wilkinson. A jury found defendant guilty and the trial court sentenced defendant to a 15-year term of imprisonment.
Defendant argued in a previous appeal to this court that his grand jury testimony as to the statement to Wilkinson should have been suppressed. This court agreed and granted defendant a new trial. See People v. Lamb (1988), 176 Ill. App. 3d 203, 208, 125 Ill. Dec. 353, 530 N.E.2d 511.
Defendant's new trial, a bench trial, began on August 8, 1989. The trial Judge allowed the State's request to admit portions of defendant's prepared statement to the grand jury into evidence. The trial Judge then found defendant guilty. Defendant filed a post-trial motion asking the court to "set aside its verdict and enter a verdict of acquittal." Defendant contended that his grand jury testimony should have been suppressed and that, without that statement, the evidence was insufficient to prove the offense of residential burglary. During the August 24, 1987, hearing on this motion, the following exchange occurred:
"THE COURT: First, you've got to change your post trial motion. There is no provisions [sic] under this law for an acquittal at this stage.
MR. MILLER: [defense attorney] I think there is, your Honor, and the point is this, without that testimony, they could not convict him.
THE COURT: I don't care, the only remedy for you is either a new trial, that's the only remedy, or if I deny your motion, of course, your remedy is to appeal. But there is no provisions [sic] under the law, case law or statute, that permits a Judge at this stage to enter a finding of not guilty.
MR. MILLER: Alright, I'll orally move for a new trial, your Honor."
The trial court found that defendant's grand jury testimony should have been suppressed. Therefore, the trial court granted the motion and ruled that defendant was entitled to a new trial. The State appealed from this ruling. This court reversed the circuit court, reinstated defendant's conviction, and remanded the cause for further ...