People v. Whitlow

363 N.E.2d 102, 48 Ill. App. 3d 425, 6 Ill. Dec. 573, 1977 Ill. App. LEXIS 2598
CourtAppellate Court of Illinois
DecidedMay 3, 1977
Docket75-544
StatusPublished
Cited by11 cases

This text of 363 N.E.2d 102 (People v. Whitlow) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Whitlow, 363 N.E.2d 102, 48 Ill. App. 3d 425, 6 Ill. Dec. 573, 1977 Ill. App. LEXIS 2598 (Ill. Ct. App. 1977).

Opinion

Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant, Jerry Whitlow, was charged in the circuit court of Saline County with the offense of criminal damage to property over *150. The property damaged was a tractor owned by W. D. Grisham. Following a jury trial, defendant was found guilty as charged and was sentenced to a term of imprisonment of one year to one year and six months. Defendant appeals the judgment entered.

On appeal, defendant presents two issues for review: whether the trial court erred in limiting his cross-examination of a State’s witness; and whether he was improperly tried for the instant offense when he had been previously acquitted of a similar charge.

On April 16, 1975, three tractors were' extensively damaged. One was owned by Grisham, another was owned by Lawrence Roberts, and the third, by Charles Lenard. Defendant was separately charged and was first tried for the damage done to Roberts’ tractor. He was acquitted of that charge. Thereafter defendant was tried for the instant offense. At trial, the State presented evidence of the nature and extent of the damage done to Grisham’s tractor. Mike Brogan and Willard Parker then each testified that they along with defendant committed the crime and that defendant was the person who actually damaged the tractor. In addition thereto, a written statement, signed by defendant, was admitted into evidence, wherein defendant stated that he, Brogan and Parker caused damage to three tractors.

Defendant testified that the written statement was the product of threats and that he signed it because he wanted to go back to his cell and sleep.

Defendant’s first contention is that the court erred in sustaining an objection to his cross-examination of Brogan concerning Brogan’s possible bias or motive to testify falsely. We initially will consider the State’s response that this issue is waived. The State’s contention is predicated on the following facts: on September 10, 1975, at the conclusion of the sentencing hearing, the trial court announced the sentence to be imposed; on September 11,1975, defendant filed a motion for a new trial; on September 15, 1975, the judgment and sentence were filed; on September 19, 1975, defendant filed a notice of appeal; and thereafter, on December 3, 1975, following a hearing, defendant’s post-trial motion was denied. The State argues, citing People v. Kleba, 1 Ill. App. 3d 563, 275 N.E.2d 174, and People v. DeMarino, 72 Ill. App. 2d 38, 219 N.E.2d 132, that defendant waived consideration of the issues raised in his post-trial motion by filing a notice of appeal before the trial court ruled on the motion. In Kleba the court refused to consider an issue regarding the defendant’s motion to withdraw his pleas of guilty since that motion had been filed in the trial court after a notice of appeal had been filed. In DeMarino, the court similarly refused to consider the defendants’ motion in arrest of judgment since that motion had been filed subsequent to the filing of a notice of appeal. The distinction between these cases and the one at bar is obvious since in the instant case defendant filed his motion for a new trial prior to the filing of a notice of appeal. Kleba and DeMarino each involved a question of jurisdiction whereas the question before us merely involves the application of the doctrine of waiver.

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 which cannot then be urged as grounds for reversal on appeal. (People v. Pickett, 54 Ill. 2d 280, 296 N.E.2d 856; People v. Irwin, 32 Ill. 2d 441, 207 N.E.2d 76.) The purpose of the waiver rule is twofold; to inform the trial court of a possible mistake and give the court an opportunity to correct that mistake and to not allow a defendant to object to that which he has acquiesced in during the course of the trial. (People v. Morgan, 44 Ill. App. 3d 459, 358 N.E.2d 280.) In the case at bar, defendant had raised, in his post-trial motion, the issue now urged on appeal and he had substantially fulfilled the goal of having timely informed the trial court of his asserted objection. The record does not indicate that the trial court, the State or defense counsel were aware of the anomaly of conducting a hearing on the post-trial motion after sentence has been imposed and a notice of appeal filed. Under these circumstances, we will not deem defendant to have waived the issue he now seeks to raise.

Defendant’s contention concerns the testimony of Brogan. Brogan testified that defendant had committed the crime and he admitted being an accomplice thereto and that he had been also charged with the crime. On cross-examination the following occurred:

“Q. Have there been any promises to you made by the office of State’s Attorney?
A. Not as of yet.
Q. Are you expecting there to be any promises made—
Mr. Henshaw: Your Honor, I object to that. It is totally—
Court: The objection is sustained, as to what he expects.”

Defendant argues that the court erred in not permitting him to cross-examine Brogan about any possible bias on the part of the witness stemming from the expectation of leniency in return for testimony favorable to the State. The State responds by arguing that defendant failed to preserve his contention by failing to make an offer of proof. We find, however, this argument to be wholly without merit since on cross-examination the examining counsel will not ordinarily be presumed to have had an advance opportunity to know what a witness will answer. (People v. Baptiste, 37 Ill. App. 3d 808, 347 N.E.2d 92; see McCormick on Evidence § 51 (2d ed. 1972).) In any event the purpose of the line of inquiry is apparent thus obviating the need for an offer of proof.

Turning to the merits of defendant’s contention, it has been held that while the scope of cross-examination of witnesses rests largely in the discretion of the trial court, the widest latitude should be allowed a defendant for the purpose of establishing bias, interest or a motive to testify falsely on the part of a witness. (People v. Mason, 28 Ill. 2d 396, 192 N.E.2d 835; People v. Hanks, 17 Ill. App. 3d 633, 307 N.E.2d 638.) This is particularly true where the inquiry is intended to show possible promises by the State or expectations of the witness of leniency in return for testimony at trial where, as here, charges against the witness are pending and potential charges may be made. (People v. Baptiste, 37 Ill. App. 3d 808, 347 N.E.2d 92

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Bluebook (online)
363 N.E.2d 102, 48 Ill. App. 3d 425, 6 Ill. Dec. 573, 1977 Ill. App. LEXIS 2598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whitlow-illappct-1977.