People v. Pickett

• Citation: 296 N.E.2d 856,54 Ill.2d 280
• Decision Date: 21 May 1973
• Docket Number: 44910,Nos. 44903,s. 44903
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Henry PICKETT, Appellant.
• Court: Supreme Court of Illinois

Page 856

296 N.E.2d 856

54 Ill.2d 280

The PEOPLE of the State of Illinois, Appellee, v. Henry PICKETT, Appellant.

Nos. 44903, 44910.

Supreme Court of Illinois.

May 21, 1973.

Paul Bradley, of Defender Project, Chicago (Steven Clark and Linda West Conley, and Charles I. Weitzman, Senior Law Student, of counsel), for appellant.

William J. Scott, Atty. Gen., of Springfield (James B. Zagel and Jayne A. Carr, Asst. Attys. Gen., and Stephen Y. Brodhay, Senior Law Student, of counsel), for the People.

RYAN, Justice:

The defendant, Henry Pickett, was indicted by the grand jury of St. Clair County for attempted armed robbery and for aggravated battery. Following a jury trial he was found guilty of attempted armed robbery and not guilty of aggravated battery. He was sentenced to a term of from 9 to 14 years in the penitentiary. The Appellate Court for the Fifth District affirmed the conviction with one justice dissenting. (2 Ill.App.3d 560, 276 N.E.2d 751). We granted leave to appeal.

It appears from the record that the case was submitted to the jury with instructions to return sealed verdicts. The sealed verdicts were returned and the following morning when the court convened, the judge, the jury, the State's Attorney, and the defendant were present in court but the defendant's counsel was absent. After a delay of 20 minutes during which an unsuccessful attempt was made to locate defendant's counsel the verdicts were received, read in open court, and filed. The defendant was then remanded to the custody of the sheriff. The jury was not polled and the defendant was not informed of his right to poll the jury. The defendant's counsel was privately retained and had represented him in the pretrial proceedings and throughout the trial. Following the return of the verdicts he continued to represent the defendant and filed a motion for a new trial and represented the defendant at a hearing on an application for probation and at the sentencing stage.

The defendant urges that his conviction must be reversed and the cause remanded for a new trial because he was denied his right to counsel at the time that the verdict was returned, received and filed in open court, which he contends was a critical stage of the proceedings. Because he was not represented by counsel at that time, he argues that he was deprived of his right to poll the jury.

The defendant's counsel who had represented the defendant throughout the trial filed the motion for a new trial about four weeks following the return of the guilty verdict. The motion was in writing and specified the grounds relied upon for a new trial as required by section 116--1 of the Code of Criminal Procedure (Ill.Rev.Stat.1969, ch. 38, par. 116--1). The motion for a new trial did not raise the issue of counsel's absence at the time the verdict was received and filed, nor did it raise the issue that the defendant was denied his right to poll the jury.

The general rule followed by this court is that the failure by the defendant 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. (People v. Nelson, 41 Ill.2d 364, 366, 243 N.E.2d 225; People v. Harris, 33 Ill.2d 389, 390, 211 N.E.2d 693; People v. Irwin, 32 Ill.2d 441, 443, 207 N.E.2d 76; People v. Touhy, 31 Ill.2d 236, 240, 201 N.E.2d 425; People v. Greer, 30 Ill.2d 415, 417, 197 N.E.2d 22; People v. Needham, 22 Ill.2d 258, 259, 174 N.E.2d 838.) This waiver rule applies to constitutional questions as well as to other issues. (People v. Long, 39 Ill.2d 40, 43, 233 N.E.2d 389; People v. Black, 52 Ill.2d 544, 555, 288 N.E.2d 376.) Our Rule 615(a) (Ill.Rev.Stat.1971, ch. 110A, par. 615(a)) provides 'Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.' This rule does not mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court. Rather the rule is a means of meliorating the harshness of the strict application of the general waiver rule. As this court stated in People v. Burson, 11 Ill.2d 360, at 370, 143 N.E.2d 239 at 245: 'The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.' Likewise, in criminal cases in which the evidence is closely balanced this court has held that it may consider errors that have not been properly preserved for review. People v. Bradley, 30 Ill.2d 597, 601, 198 N.E.2d 809; People v. Nowak, 372 Ill. 381, 382, 24 N.E.2d 50; People v. Gardiner, 303 Ill. 204, 207, 135 N.E. 422.

We do not consider that the defendant was deprived of a fair and impartial trial nor was he prejudiced by the absence of counsel when the verdict was returned or by the fact that the jury was not polled. We also do not consider that the evidence is closely balanced. We find no reason for departing from the general rule that issues not properly preserved for review are waived. There is little dispute as to the facts in the case. The defendant and three other men drove to a tavern after closing hours. The front door of the tavern was unlocked by the female bartender to permit the defendant to enter. Defendant stated that he wanted to purchase a bottle of whiskey. As the bartender unlocked the side door to permit defendant to leave, two of defendant's companions rushed in. They were armed and they pushed the bartender behind the bar where she seized a pistol. As she did so, she was shot by one of the defendant's companions, whom she in turn shot and killed. She then shot the defendant, and the third bandit shot her in the arm, causing her to drop the gun. The defendant's defense was that he was not armed and knew nothing about the plan to rob the tavern and did not participate in the attempt to do so. However, he admitted coming to...