source: Caselaw Access Project

author: JUSTICE RYAN

license: Public Domain

text:
    (No. 54140.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WAYNE PEARSON et al. (Stephan Williams, Appellee).

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Bernard Carey and Richard M. Daley, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Iris E. Sholder, Christine A. Campbell, and Adrienne Noble Nacev, Assistant State’s Attorneys, of counsel), for the People.
    Sam Adam, of Chicago, for appellee.
   JUSTICE RYAN

delivered the opinion of the court:

Stephan Williams and Wayne Pearson were each charged in the circuit court of Cook County with three counts of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18—2). Both defendants were convicted on all three counts following a bench trial where they acted as counsel for themselves. Pearson was sentenced to a term of not less than 10 years but not more than 14 years, while Williams received a sentence of not less than 9 but not more than 13 years. On appeal, the appellate court found that Williams had not been placed on trial within 120 days of his arrest and was entitled to release on that basis under the speedy trial provisions of the Code of Criminal Procedure of 1963. The appellate court affirmed Pearson’s conviction. (People v. Pearson (1980), 88 Ill. App. 3d 616, 620.) Pearson is not involved in this appeal. We granted the State’s petition for leave to appeal as to Williams. 73 Ill. 2d R. 315(a).

During the pendency of Williams’ (defendant’s) case, the trial court, in entering orders of continuance, charged the delays to the defendant. The appellate court held that these delays were not properly charged to the defendant, that he had not been brought to trial within 120 days from the date of his incarceration as required by statute, and that he was entitled to be discharged (Ill. Rev. Stat. 1977, ch. 38, par. 103—5). The defendant’s argument in this court focuses on whether the provisions of this statute have been violated and whether the continuances were properly charged to the defendant. The controlling issue in this case is not whether the continuances were properly charged to the defendant. As noted later we find that the defendant was incarcerated for more than 120 days contrary to the statute. However, we need not consider the various continuances to determine whether the running of the statutory period was tolled. The controlling issue in this case is waiver. Although the defendant insisted on going to trial and objected to his attorney’s motions for continuances, at no time before trial or during trial did the defendant move that he be discharged because of a violation of the speedy trial statute. Since the speedy trial issue was not raised prior to trial it was waived, and the defendant is precluded from raising it.

Although the public defender represented defendant during most of the pretrial proceedings, on September 14, 1977, the public defender was permitted to withdraw as counsel and the defendant proceeded pro se. The public defender was permitted to remain in the case as standby counsel for the purpose of advising the defendant should he so request. A jury trial commenced on January 9, 1978. After rather a lengthy jury selection a conference was held in the judge’s chambers attended by the defendant, the prosecutor, and standby defense counsel. The defendant then executed a jury waiver, and trial was had before the court with the defendant representing himself. Following conviction, pursuant to defendant’s request, the public defender was appointed to represent him at the sentencing hearing. Also, after sentencing, in response to an inquiry by the court, defendant asked to have an attorney represent him for purposes of presenting post-trial motions and processing an appeal. The court again appointed the public defender, who made oral motions for a new trial and for arrest of judgment. These motions were general in nature and specified no grounds in support thereof. The State made no objections to the form of the motions. Following a denial of the motions, a notice of appeal was filed. Thereafter on October 5,1978, the public defender was permitted to withdraw as counsel on appeal and a private attorney entered his appearance.

About eight months after the defendant’s direct appeal from his conviction was docketed in the appellate court, the same private counsel who entered his appearance in that appeal filed on behalf of the defendant in the trial court a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122—1 et seq.) alleging certain constitutional violations, including a violation of the right to speedy trial. The petition was dismissed on motion of the People without an evidentiary hearing. The court concluded that the violation, if any, was of the statutory provisions requiring that the defendant be brought to trial within 120 days after his incarceration (Ill. Rev. Stat. 1977, ch. 38, par. 103—5) and not a constitutional violation. Although the record in the post-conviction proceeding shows that a notice of appeal was filed from the court’s ruling, a review of that judgment is not a part of this appeal. After the entry of this judgment in the trial court the appellate court, in the direct appeal case, entered an order on July 5, 1979, allowing the defendant to file an additional record on appeal, and on the same date the record of the post-conviction proceedings was filed in this case.

It appears from the colloquy between counsel during the argument of the State’s motion to dismiss the defendant’s petition for a post-conviction hearing that defendant’s counsel filed the post-conviction proceeding to preserve issues for review that might otherwise be considered waived for failure to raise them in the trial court. We find the belated attempt to supplement the record on appeal insufficient to offset the clear waiver of the violation of the 120-day statute.

In the post-conviction petition and in this court defendant contends he was deprived of the right to represent himself, citing Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525. Actually, the defendant was permitted to represent himself and conducted his own defense at the trial. The gist of defendant’s argument is that before the public defender withdrew as counsel certain continuances requested and agreed to by the public defender over the defendant’s objections and in spite of his demand for trial should not be charged to him. He contends that since he insisted on trial and did not want a continuance his request and not his attorney’s should control. For this reason he argues that the running of the 120-day statutory period was not tolled and that to hold otherwise would deprive him of his right to represent himself.

A fair appraisal of the proceedings on July 20, August 19, and August 29, 1977, in this case, reveals that defendant clearly and convincingly attempted to assert his right to discharge his attorney and proceed to an immediate trial. There can be no question but that the defendant was asserting his readiness to proceed. We recognize that the public defender may not have been prepared for trial due to defense motions which were pending or a continuing search for witnesses. However, under these circumstances, where the defendant objects to his attorney’s request for qr acquiescence in a continuance by employing such terms as “I’m ready for trial,” “Forget the motion,” and “you are not my attorney I’m ready for trial,” any continuance thereafter granted is not properly attributable to the accused. Also, with respect to the August 11,1977, proceeding the record does not disclose that the defendant was present when the public defender requested a continuance. Under the facts of this case it is clear that, had defendant been in court, he would not have acquiesced in this delay either.

While we agree that these continuances should not have been charged to the defendant, we do not accept the conclusion he reaches concerning his right to be released. Section 103—5 of the Code of Criminal Procedure of 1963 provides in part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant oco.” (Ill. Rev. Stat. 1977, ch. 38, par. 103—5.)

This court has pointed out that section 103—5 is to be construed liberally so as to give effect to the constitutional right to a speedy trial, and each case is to be decided on its own facts. (People v. Fosdick (1967), 36 Ill. 2d 524, 528-29.) However, the right conferred by the statute is not absolute in the sense that the mere passage of time ousts the court of jurisdiction to try the accused and makes his release mandatory. (People v. Moriarity (1966), 33 Ill. 2d 606, 609; People v. Morria (1954), 3 Ill. 2d 437, 442; People v. Utterback (1944), 385 Ill. 239, 243.) Further, it was long ago established that the right to discharge granted by the statute was waived if not asserted by the defendant prior to conviction. People v. Stahl (1962), 26 Ill. 2d 403, 405; People v. Walker (1958), 13 Ill. 2d 232, 235; People v. Morris (1954), 3 Ill. 2d 437, 441-42.

Also, section 114—1 of the Code of Criminal Procedure of 1963 provides:

“Motion to Dismiss Charge.
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with Section 103—5 of this Code;
<* # #
(6) The court in which the charge has been filed does not have jurisdiction;
(8) The charge does not state an offense;
O # $
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has' been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” (Ill. Rev. Stat. 1977, ch. 38, pars. 114—1(a)(1), (a)(6), (a)(8), (b).)

Thus, by statute it is specifically provided that a violation of the provisions of section 103—5 of the Code relating to speedy trial is waived unless a motion for discharge is made prior to trial.

The appellate court found that the defendant had preserved the issue by the general oral motion for a new trial and for arrest of judgment made by the public defender following sentencing. The appellate court properly noted that, although post-trial motions are required by statute to be in writing specifying the grounds therefor (Ill. Rev. Stat. 1977, ch. 38, pars. 116—1, 116—2), a general oral motion to which the State does not object will preserve for review all errors which appear properly preserved in the record even though not specified in the oral post-trial motion. (People v. Whitehead (1966), 35 Ill. 2d 501, 503-04.) The appellate court held that the requirements of sections 114—1(a) and (b) of the Code of Criminal Procedure of 1963 set forth above have been modified by judicial decision. The appellate court in this case stated that the motion for discharge based on a denial of a speedy trial can be made before conviction or in a post-trial motion, citing People v. Taylor (1965), 32 Ill. 2d 165, and People v. Glanton (1975), 33 Ill. App. 3d 124. In Taylor this court, in disposing of the defendant’s contention that he was denied a speedy trial, stated:

“[T]he record discloses that the issue was never presented to the trial court, either by a motion prior to trial or in the post-trial motion.” (Emphasis added.) (32 Ill. 2d 165, 168.)

In Glanton the court, citing Taylor, stated:

“[A]ny right to a Fourth Term discharge must be asserted prior to conviction or in a post-trial motion.” (Emphasis added.) (33 Ill. App. 3d 124, 144.)

The statement in Taylor has been construed too broadly by the appellate court in this case and by the appellate court in Glanton. The Glanton court, in support of its statement, also cites People v. Browry (1972), 8 Ill. App. 3d 599. However, the appellate court in Browry held that the defendant had waived his right to be discharged, stating:

“It is well settled that a defendant who wants the benefit of the 120-day statute must make application for discharge before he is convicted.” (Emphasis added.) 8 Ill. App. 3d 599, 602.

This court in Taylor, in support of its holding, cited People v. Morris (1954), 3 Ill. 2d 437. In Morris, however, this court stated plainly that the right to discharge under the statute “is waived where there is a failure to raise the question prior to conviction.” (Emphasis added.) 3 Ill. 2d 437, 442.

In People v. Walker (1958), 13 Ill. 2d 232, this court had before it the question with which we are now concerned. In that case the defendant failed to move for discharge under the speedy trial statute prior to his conviction. After conviction the defendant, in his post-trial motion, raised the question of the failure to bring him to trial within four months after his arrest. The court held that the issue had been waived where the defendant had failed to raise it prior to conviction. (13 Ill. 2d 232, 235.) The Walker court, as did the Taylor court, cited People v. Morris (1954), 3 Ill. 2d 437. This court in Taylor did not refer to Walker and did not overrule it. The issue before the court in Taylor was not whether the question of speedy trial could be raised in either a preconviction or post-conviction motion, and the court did not hold that it could.

It is interesting to note that People v. Bonds (1965), 32 Ill. 2d 94, was an opinion filed on the same day that the opinion in People v. Taylor was filed. In Bonds this court, citing Walker, held that the speedy trial issue was waived where the defendant did not bring the question to the attention of the trial court by appropriate motion prior to conviction. Plainly, it was not the intention of Taylor to overrule Walker. In People v. Gibson (1975), 30 Ill. App. 3d 555, 558, the appellate court held, citing numerous decisions of this court, that the “motion for discharge asserting a denial of a speedy trial must be made before conviction in the court in which the indictment is pending.” (Emphasis in original.)

It appears that prior to the adoption of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 100—1 et seq.) there was no statutory requirement that a motion for discharge be filed prior to trial as is now contained in section 114—1 of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 114—1). The procedure for obtaining discharge prior to the Code of Criminal Procedure had been developed through case law. (See 1 B. Stanton, Illinois Criminal Law and Practice §977, at 348-49 (1955).) The cases that developed the procedure held that the application for discharge must be made prior to conviction. However, under section 114—1 of the Code of Criminal Procedure it is required that the motion be made prior to trial.

We conclude that the holding of the appellate court that the speedy trial issue need not be brought to the trial court’s attention before trial but may be raised for the first time in a post-trial motion is in error. Such a holding is contrary to the express language of section 114—1 of the Code of Criminal Procedure quoted above, which requires that the motion for discharge be made prior to trial. It is also contrary to the case law as heretofore pronounced and applied by this court. We accordingly reverse the judgment of the appellate court as to the defendant Williams and affirm his conviction by the circuit court of Cook County.

Appellate court reversed; circuit court affirmed.


author: CHIEF JUSTICE GOLDENHERSH JUSTICE WARD, JUSTICE MORAN

text:
    (No. 53903.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JERRY VAN WINKLE, Appellant.

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

    WARD, MORAN, and SIMON, JJ., concurring in part and dissenting in part.
    Robert Agostinelli, Deputy Defender, and Charles Hoffman, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.

      Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Susan M. Sherwin, and James E. Fitzgerald, Assistant Attorneys General, of Chicago, of counsel), for the People.
   CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Henry County, defendant, Jerry Van Winkle, was convicted of the offenses of armed violence, attempted murder, aggravated battery and battery. He was sentenced to a term of six years in the Department of Corrections on the armed-violence conviction. The appellate court affirmed (86 Ill. App. 3d 289), and we allowed defendant’s petition for leave to appeal (73 Ill. 2d R. 315).

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues. In a three-count information defendant was charged with one count of attempted murder, one count of aggravated battery and one count of armed violence, all based on the allegation that defendant shot Timothy Melchouri in the neck with a pistol.

Defendant contends that the armed violence conviction must be reversed for the reason that the General Assembly did not intend that the use of a deadly weapon could serve to enhance battery, a misdemeanor, to aggravated battery, a felony, and then to armed violence, a Class X felony.

The armed-violence count charged that defendant “while armed with a dangerous weapon, a pistol, performed acts prohibited by the Illinois Revised Statutes, Chapter 38, Section 12—4(b)(1), in that he, knowingly and without legal justification, shot Timothy Melchiori [sic] in the neck, thereby causing bodily harm to Timothy Melchiori [sic] in violation of Paragraph 33A—2, Chapter 38, Illinois Revised Statutes.” Although it would appear that the aggravated battery charge could have been based on section 12—4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12—4(a)), the count of the information charging aggravated battery is based upon section 12—4(b)(1), and the count charging armed violence makes specific reference to section 12—4(b)(1).

In People v. Haron (1981), 85 Ill. 2d 261, we considered the question whether aggravated battery charged under section 12—4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(b)(1)) could serve as the predicate felony for invoking the armed-violence statute and stated:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A—2 that thére be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” (85 Ill. 2d 261, 278.)

Our decision in Harón requires that the judgment be reversed as to the conviction of armed violence. Because of the conclusion reached, it is unnecessary to consider defendant’s contentions concerning the validity of the statute.

We consider next whether the circuit court erred in denying defendant’s motion in arrest of judgment as to the attempted murder count. It is defendant’s contention that this count, because it failed to allege that defendant acted with the specific intent to kill, failed to charge the necessary elements of the offense of attempted murder as required by section 111—3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111—3(a)(3)).

Count I of the information alleged that the defendant, “with the intent to commit the offense of Murder in violation of the Illinois Revised Statutes, Chapter 38, Section 9—1a2, performed a substantial step toward the commission of that offense in that he, without lawful justification, knowingly performed an act creating a strong probability of death or great bodily harm to Timothy Melchiori [sic], in that he shot the said Timothy Melchiori [sic] in the neck with a pistol The parties agree that an information purporting to charge the offense of attempted murder must allege that the defendant acted with the intent to kill.

Defendant acknowledges that in People v. Barker (1980), 83 Ill. 2d 319, it was held that because the indictment charged the defendant with the intent to commit murder it was unnecessary to charge that the acts performed as a substantial step toward the commission of that offense were committed with the specific intent to kill. He argues that the information here is distinguishable from the indictment in Barker in that the indictment did not include the statutory language that defendant “knowingly performed an act creating a strong probability of death or great bodily harm.” He argues further that in Barker the sufficiency of the indictment was questioned for the first time on appeal and must therefore be judged by the standards enunciated in People v. Gilmore (1976), 63 Ill. 2d 23. He points out that the attack here was made by motion in arrest of judgment and that under the test applicable at that stage of the proceedings the information was defective.

This court in People v. Muir (1977), 67 Ill. 2d 86, People v. Harris (1978), 72 Ill. 2d 16, and People v. Barker (1980), 83 Ill. 2d 319, considered and discussed the contentions presented by the parties in this cause. Following review of the authorities we adhere to our holding in People v. Barker that “It is not logical to argue that an indictment charging one with the intent to commit murder does not charge that he had the intent to kill.” (83 Ill. 2d 319, 326.) That portion of the information which charged that defendant “performed a substantial step toward the commission of that offense [murder] in that he, without lawful justification, knowingly performed an act creating a strong probability of death or great bodily harm to Timothy Melchiori [sic], in that he shot the said Timothy Melchiori [sic] in the neck with a pistol ###” alleged the “act which constitutes a substantial step toward the commission” of the offense (Ill. Rev. Stat. 1977, ch. 38, par. 8—4(a)). Nothing in that language tends to negate the requirement of proof of the specific intent to kill the object of defendant’s violence.

For the reasons stated, the judgments of the appellate and circuit courts are reversed as to the armed-violence conviction. The cause is remanded to the circuit court of Henry County with directions to impose sentence on the conviction for attempted murder.

Judgments affirmed in part and reversed in part; cause remanded, with directions.

JUSTICE WARD,

concurring in part and dissenting in part:

I dissent from the majority’s affirmance of the conviction of attempted murder. Adhering to what was held on the question in People v. Barker (1980), 83 Ill. 2d 319, continues, I believe, the confusion stemming from People v. Trinkle (1977), 68 Ill. 2d 198. See People v. Barker (1980), 83 Ill. 2d 319, 333 (Ward, J., dissenting). I concur in the balance of the judgment.

JUSTICE SIMON joins in this partial concurrence and partial dissent.

JUSTICE MORAN

also concurring in part and dissenting in part:

I concur that the judgment of conviction for the offense of armed violence must be reversed; however, I dissent from that part of the decision upholding defendant’s conviction for attempted murder. See People v. Barker (1980), 83 Ill. 2d 319, 333 (Moran, J., dissenting).

JUSTICE SIMON joins in this partial concurrence and partial dissent.


author: JUSTICE CLARK

text:
    (No. 54082.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EVERETT BAYNES, Appellant.

      Opinion filed December 4, 1981.

    Rehearing denied January 29, 1982.

      MORAN, J., concurring in the judgment.
    John H. Reid, Deputy Defender, and Richard J. Bennett, Assistant Defender, of the Office of the State Appellate Defender, of Mount Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Fred E. Inbau and Charles F. Marino, Special Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

On February 19, 1978, at approximately 1:30 a.m., Michael Walsh, driving along a country road in Monroe County in a 1972 pickup truck, had an accident. Walsh and his companions were driven to the hospital in a car which had been following them, and the pickup truck was left alongside the road. When Walsh returned to his truck the next day he discovered a tachometer, two stereo speakers and three tires missing.

The defendant, Everett Baynes, was charged with burglary of the tachometer and burglary and misdemeanor theft of the two stereo speakers. Following a plea of not guilty the defendant was tried by a Monroe County jury on May 15,1978. He was found guilty of one count of burglary of the tachometer and was acquitted on the other count of burglary and the count of misdemeanor theft of the stereo speakers. On August 31, 1978, he was sentenced to a five-year term of imprisonment.

Prior to trial the defendant took a polygraph examination pursuant to a stipulation signed by the State’s Attorney, defense counsel and the defendant. The trial court received into evidence the testimony of a polygraph examiner who stated that in his opinion the defendant was not telling the truth when he answered certain relevant questions during a polygraph examination. The defendant made no objection to the examiner’s testimony at trial or in his post-trial motion. The appellate court found that such testimony did not have an obvious prejudicial impact on the jury and did not constitute reversible error. The court affirmed the conviction. (87 Ill. App. 3d 1000.) The defendant appealed that judgment, and we granted leave to appeal.

It is a general rule that an objection to the introduction of evidence must be made at the time of admission or it will be treated as waived. (People v. Roberts (1979), 75 Ill. 2d 1, 6; People v. Williams (1963), 28 Ill. 2d 114, 116; People v. Arnold (1963), 27 Ill. 2d 294, 297; People v. Luckett (1962), 24 Ill. 2d 550, 554.) If the error is not raised in a post-trial motion it is waived on appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177; People v. Foster (1979), 76 Ill. 2d 365; People v. Edwards (1978), 74 Ill. 2d 1, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) However, this rule is one of administration and does not operate as a jurisdictional bar. (People v. Burson (1957), 11 Ill. 2d 360, 370.) Error that rises to the level of plain error is considered by this court despite the defendant’s failure to record objections and properly preserve the record for review. People v. Jackson (1981), 84 Ill. 2d 350, 359.

One purpose of the plain error rule is to afford certain protections to the accused. In order to prevent a serious injustice being done to a defendant, the error should be corrected. The other purpose of the plain error rule is to protect and preserve the integrity and reputation of the judicial process.

Objections must be recorded to be properly preserved for review. (People v. Coles (1979), 74 Ill. 2d 393.) If a party does not adhere to that rule he has effectively waived his rights to appeal where there has been no indication that the party found fault with the admissibility of the evidence at the time of trial. If the admission of evidence constitutes plain error resulting in a miscarriage of justice upon a defendant or a tainting of the integrity and reputation of the judicial process, then it is considered although such error was not brought to the attention of the trial court. Thus the plain error rule works, in fact, as an exception to the waiver rule which is invoked upon a party’s failure to conform to a primary rule of appellate procedure. Rule 615(a) states: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).) To circumvent the general waiver rule the record must clearly show the commission of an error that substantially affected a defendant’s rights. People v. Jackson (1981), 84 Ill. 2d 350, 359; People v. Foster (1979), 76 Ill. 2d 365, 380; People v. Coles (1979), 74 Ill. 2d 393, 397.

This court may exercise its discretion in taking notice of errors which deprive the accused of a fair and impartial trial. (People v. Pickett (1973), 54 Ill. 2d 280.) The court must ask, even in the absence of objection at trial, if the defendant was prejudiced to the extent that he was prevented from receiving a fair trial. If so, error may be considered. (People v. Jackson (1981), 84 Ill. 2d 350.) To determine whether the defendant was prevented from receiving a fair trial the court evaluates the evidence to see if it is close. No court wants to take a chance that an innocent person may have been convicted by an obvious error which was not preserved for the reviewing court. (People v. Carlson (1980), 79 Ill. 2d 564, 576; People v. Pickett (1973), 54 Ill. 2d 280; People v. Bradley (1964), 30 Ill. 2d 597.) In its review under this analysis the court must weigh evidence to see if it is closely balanced.

Everett Baynes was convicted of burglary under a theory of accountability. The chief witnesses for the State were David McCoombe and Mark Barnett, both of whom implicated the defendant, and both of whom were also charged with offenses involving the disabled truck. The charge against McCoombe was reduced from felony burglary to misdemeanor theft. McCoombe was to pay a $200 fine plus court costs. The record does not show Barnett’s plea. It does, however, show that his jail sentence amounted to three days. As participants in the crime the testimony of these accomplices must be examined carefully and cautiously. (People v. Wilson (1977), 66 Ill. 2d 346.) Their statements will be looked upon with distrust upon review. People v. Lindgren (1980), 79 Ill. 2d 139, 142.

According to the testimony of McCoombe and Barnett it was at the direction of the defendant that McCoombe climbed into the cab of the pickup truck and removed the tachometer. The defendant was positioned down the road at his grandfather’s house as a lookout. Prior to the incident, police officer John Koch, investigating the accident, engaged in conversation with the defendant (whom he knew socially). This occurred shortly after the mishap at the scene of the accident. The defendant commented that the tachometer “would look good in his car.” Koch responded that “it would look good in the police car or any other car.” Later on February 19, 1979, Koch stopped the defendant after he had spun his tires leaving a local gas station. Koch asked the defendant if he knew anything about the tachometer or other items taken from the truck. Baynes responded that he knew where it was but would not tell Koch where. Still later the same day, Baynes brought the tachometer to Koch and told the police officer he had retrieved it from the trunk of a car. The defendant did not identify the car’s owner.

When the defendant brought the tachometer in, the deputy sheriff advised Baynes of his Miranda rights and then questioned him. The defendant said that he was parked a short distance down the road when McCoombe drove by and waved the tachometer to him; after that Officer Koch had asked him to bring in the tachometer, and the defendant removed it from a styrofoam cooler in McCoombe’s car.

The polygraph examination in question occurred on April 14, 1978, pursuant to a stipulation that the results would be admissible. The examiner testified that the following pertinent questions were asked:

(1) “On or about February 19,1978, did you show anyone the speakers that had been stolen from the overturned truck?”
(2) “On or about February 19, 1978, did you have in your possession the speakers that were stolen from the overturned truck?”
(3) “On or about February 19, 1978, did you tell McCoombe to take the tach from the overturned truck?”
(4) “Besides the keys, did you remove anything else from that overturned truck?”

To each question the defendant answered no. In the opinion of the examiner none of the defendant’s answers were truthful. The credibility of the prosecution’s witnesses is important, and the polygraph evidence directly enhanced the statements of McCoombe and Barnett that it was at Everett Baynes’ direction that the burglary took place. However, we do not find the evidence so closely balanced as to persuade us the alleged error be considered. It is not necessary to reach the substance of the complained-of error, here, under the first part of the plain error test.

This court will take notice of errors so fundamental that the court considers them to protect and preserve the integrity and reputation of the judicial process. Under this part of the test it is necessary to review our treatment of polygraph evidence to determine whether or not the admission of the examiner’s testimony, despite the stipulation, constitutes plain error. To provide a foundation we begin by describing the polygraph examination, i. The polygraph examination

In 1895 the Italian physiologist Cesare Lombroso was recognized as the first person to use a method involving blood pressure to ascertain guilt or innocence. By 1924 an “inspiration and expiration” recorder was added. By 1922 a “cardiopneumopsychogram” introduced the modern technique of recording a person’s responses to stimuli. Those supposedly involuntary reactions were then measured and evaluated by experts. (Forkosch, The Lie Detector and Mechanical Jurisprudence, 28 Okla. L. Rev. 288, 299 (1975).) In 1923 the District of Columbia Court of Appeals described the “systolic blood pressure description test”:

“It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.
In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished ’ from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.” Frye v. Untied States (D.C. Cir. 1923), 293 F. 1013, 1013-14.

The systolic-blood-pressure test was a forerunner to today’s polygraph. The basic technique and theory have not dramatically changed since the 1920’s. The polygraph measures and records blood pressure changes, respiration changes, pulse changes and changes in the skin’s resistance to electricity. It too operates on the principle that the autonomous nervous system will respond to stressful conditions and that sympathetic parts of that system will respond involuntarily. (J. Reid & F. Inbau, Truth and Deception: The Polygraph (Lie Detection) Technique 216-50 (2d ed. 1977).

The polygraph’s scientific basis has been questioned. According to Professor Jerome Skolnick: “There seems to be little evidence that upholds the claim to a regular relationship between lying and emotion; there is even less to support the conclusion that precise inferences can be drawn from the relationship between emotional change and physiological response.” Skolnick, Scientific Theory and Scientific Evidence, An Analysis of Lie-Detection, 70 Yale L.J. 694, 727 (1961) (hereafter Skolnick).

The polygraph’s attempts to measure automatic physiological responses are influenced by variables which are not a function of the subject’s guilt or innocence. (Lykken, Psychology and the Lie Detection Industry, 29 Am. Psychologist 725, 730 (1974).) The interactions between the subject and the examiner are subtle. The results are subject to conscious or unconscious manipulation. The measurement of physiological responses may be complicated by the tension of the subject or his spontaneous autonomic activity. (Skolnick, 70 Yale L.J. 694, 701 (1961).) A variety of other factors can influence the reliability of the measured physiological response. Included are: abnormal blood pressure, heart and respiratory irregularities, fatigue, intoxication, rationalization, extreme nervousness, meditative abstraction, controlled breathing, instrument discomfort, uncomfortable room temperature, obesity, hidden muscular contractions, self-inflicted pain, mental incompetence, psychopathy or schizophrenia, ingestion of a sedative, an attempt to suppress a cough, fear induced by suspicion or accusation, or lack of fear of detection. Note, Polygraphy: Short Circuit to Truth?, 29 U. Fla. L. Rev. 286, 296-97 (1977).

While estimates of the machine’s accuracy vary from 70% (Burkey, The Case Against the Polygraph, 51 A.B.A. J. 855, 856 (1965), to approximately 86% (J. Reid & F. Inbau, Truth and Deception: The Polygraph Technique 395-98 (2d ed. 1977)), both opponents and proponents agree that the efficacy of the polygraph examination depends upon the examiner’s interpretation of the machine’s graphs. This in turn depends upon the qualifications of the operator. (Inbau & Reid, The Lie Detector Technique: A Reliable and Valuable Investigative Aid, 50 A.B.A. J. 470 (1964); Skolnick, 70 Yale L.J. 694 (1961).) In almost two-thirds of polygraph examinations, responses are subtle in their appearance and require a “highly skilled” and “well trained examiner.” (Horvath & Reid, The Reliability of the Polygraph Examiner Diagnosis of Truth & Deception, 62 J. Crim. L. Criminolgy and Police Science 276, 278 (1971).) Thus to a large extent the ultimate conclusions of the examination are dependent upon the subjective opinion of each examiner’s interpretation. J. Reid & F. Inbau, Truth and Deception: The Polygraph Technique 215-20 (2d ed. 1977); Radek, The Admissibility of Polygraph Results in Criminal Trials: A Case for the Status Quo, 3 Loy. Chi. L.J. 289, 296 (1972).

ii. History of polygraph evidence in Illinois

This court last addressed the issue of polygraphs in Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130. In that case this court concluded that “[the] Act to provide for licensing and regulating detection of the deception examiners **” (the Act) (Ill. Rev. Stat. 1975, ch. 38, par. 202—1 et seq., now Ill. Rev. Stat. 1979, ch. Ill, par. 2401 et seq.) does “not offend the special legislation clause of the Illinois Constitution.” (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 145.) The plaintiffs in Illinois Polygraph Society sought to enjoin the defendant (not licensed under the Act) from conducting detection-of-deception examinations or from representing himself as a detection-of-deception examiner. In upholding the Act we commented that “[t]here is still enough doubt about the reliability of detection-of-deception instruments, and the varying expertise of those who use them, to justify the General Assembly’s decision to set minimum standards which prefer one instrument over another.” (83 Ill. 2d 130, 139.) We went on to say that doubt was cast on the instrument’s reliability in the enactment of the Act forbidding the use of results from lie-detection devices in criminal trials (Ill. Rev. Stat. 1977, ch. 38, par. 155—11). 83 Ill. 2d 130, 139.

Statute provides:
“In the course of any criminal trial the court shall not require, request or suggest that the defendant submit to a polygraphic detection test, commonly known as a lie detector test to questioning under the effect of thiopental sodium or to any other test or questioning by means of any mechanical device or chemical substance.” Ill. Rev. Stat. 1977, ch. 38, par. 155—11.

A more precise interpretation of the preceding provision is that the General Assembly forbids any request, requirement or suggestion on the part of the court that the defendant submit to an examination, This section does not necessarily preclude an agreement by the defendant and prosecutor that the defendant undergo a polygraph examination prior to trial. The provision is, however, a strong indication that the legislature distrusts the use of polygraph evidence in a criminal trial.

In both People v. Vriner (1978), 74 Ill. 2d 329, and People v. Nicholls (1969), 42 Ill. 2d 91, the defendants attempted to introduce exculpatory evidence in the form of a polygraph examiner’s statement. In both instances the defendants entered into no agreement with the prosecutor that they would take polygraph tests and there was no understanding that any results from a test would be admissible at trial. In Nicholls, in dismissing the defendant’s contention that failure to admit the polygraph examiner’s testimony was error, the court recalled its consistent holdings that “the results of a polygraphic examination cannot properly be introduced as evidence either of guilt or innocence of an accused.” 42 Ill. 2d 91, 97, citing People v. Zazzetta (1963), 27 Ill. 2d 302.

The facts of People v. Zazzetta are more similar to the case at hand. There the defendant asserted that the trial court erred in admitting the results of a lie-detector test into evidence. While the defendant had agreed to take the test, he did so without the benefit of counsel. The court concluded that it would be “manifestly unfair to bind him by a stipulation regarding the trustworthiness of scientific opinion far beyond his expected ken.” 27 Ill. 2d 302, 309.

The court pointed out that there had not been a scintilla of evidence introduced regarding the qualifications of the examiner or the method of testing, and there had been no opportunity for the defendant to cross-examine the examiner who had concluded that defendant lied. (27 Ill. 2d 302, 309.) In the case at hand it appears that those evidentiary problems were overcome. The examiner testified as to his qualifications and the method of testing he employed, and the defendant’s counsel had an opportunity to cross-examine the polygraph examiner. However, the primary obstacle in admission of polygraph evidence, stipulated to or not, has continually and consistently been the instrument’s disputed scientific reliability. (People v. Zazzetta (1963), 27 Ill. 2d 302, 309; People v. Potts (1966), 74 Ill. App. 2d 301, 306; People v. Monigan (1979), 72 Ill. App. 3d 87, 92.) Because of the lack of procedural safeguards in Zazzetta this court was not compelled to take sides in the dispute. The facts of this case oblige us to do so.

A written and signed stipulation of the defendant and State’s Attorney would normally foreclose review. (People v. Pierce (1944), 387 Ill. 608, 614; People v. Malin (1939), 372 Ill. 422, 423.) Parties who agree to certain terms are estopped from later objecting to the terms of that agreement. Generally, neither can complain of evidence stipulated into the record (People v. Polk (1960), 19 Ill. 2d 310, 315; Kazubowski v. Kazubowski (1968), 93 Ill. App. 2d 126, 134.) The admissibility of a polygraph examination’s results, however, is different and must be treated as such. Other jurisdictions’ holdings on the admissibility of polygraph testimony despite a stipulation turn upon respective courts’ assessments of the examination’s probative value and acceptability.

If the instrument is accurate and the recording of the instrument’s results reliable, then we should conclude it is acceptable. But the process has not reached a level of sophistication that makes it generally more probative than prejudicial. A stipulation does not necessarily make inadmissible evidence admissible. By what logic should stipulated polygraph evidence be admitted if the same evidence, absent a stipulation, is barred? How does the agreement lend credibility to an examination that would not otherwise be given judicial recognition? If evidence is unreliable, agreeing to its admission does not make it reliable. Even proponents of the admission of polygraph recognize that “the distinction between ‘reliable enough for a stipulation’ and ‘reliable enough for trial’ is simply not meaningful. 000 [I]t cannot be logically argued that any ‘foundation’ as to accuracy is achieved by stipulation.” Tarlow: Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J. 917, 955-56 (1975).

A stipulation can admit facts but cannot change the law. (Los Angeles Ship Building & Drydock Corp. v. United States (9th Cir. 1961) 289 F.2d 222, 231.) The law is that polygraph evidence is not admissible in the State of Illinois. At trial, evidence of the polygraph was admitted by virtue of a stipulation. This evidence would not have been considered reliable enough for admission absent the stipulation. The stipulation attempts to change the legal standard for admissibility. This court cannot accept such a result.

Our holding today is in accord with the majority of jurisdictions. It is also consistent with the most recent results reached by our sister States,

iii. Development in other jurisdictions

Almost all courts refuse to admit unstipulated polygraph evidence because there remain serious doubts about the reliability and scientific recognition of the tests. (E.g. United States v. Frogge (5th Cir. 1973), 476 F.2d 969, 970; United States v. Urquidez (C.D. Cal. 1973), 356 F. Supp. 1363; United States v. Wilson (D. Md. 1973), 361 F. Supp. 510.) A majority of jurisdictions that have addressed the issue have also held that polygraph results without further substantial procedural safeguards are inadmissible, notwithstanding a written stipulation of admissibility. (State v. Corbin (La. 1973), 285 So. 2d 234; Fulton v. State (Okla. Crim. App. 1975), 541 P.2d 871; Lewis v. State (Tex. Crim. App. 1973), 500 S.W.2d 167; Pulakis v. State (Alaska 1970), 476 P.2d 474, 479; State v. Gagne (Me. 1975), 343 A.2d 186, 192; People v. Ranes (1975), 63 Mich. App. 498, 502, 234 N.W.2d 673, 676; Harrison v. State (Miss. 1975), 307 So. 2d 557, 562; State v. Steinmark (1976), 195 Neb. 545, 548, 239 N.W.2d 495, 496-97; Commonwealth v. Gee (1976), 467 Pa. 123, 142, 354 A.2d 875, 884; State v. Watson (S.D. 1976), 248 N.W.2d 398, 399; Robinson v. State (Tex. Crim. App. 1977), 550 S.W.2d 54, 59; Jones v. Commonwealth (1974), 214 Va. 723, 725, 204 S.E.2d 247, 248; State v. Dean (1981), 103 Wis. 2d 228, 307 N.W.2d 628.) The courts reason that if the rationale for exclusion is the inaccuracy of the test, it does not gain accuracy by a mere stipulation of the parties.

The District of Columbia Court of Appeals in Frye v. United States (1923), 293 F. 1013, was the first to grapple with the issue of the admissibility of polygraph evidence:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Frye v. United States (1923), 293 F. 1013, 1014.)

There have been considerable improvements in instrumentation and technique since the first decision was handed down. In State v. Valdez (1962), 91 Ariz. 274, 283, 371 P.2d 894, 900, the Arizona court found that the machine had “developed to a state in which its results are probative enough to warrant admissibility upon stipulation.” Polygraph evidence was found to be admissible provided:

“(1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion thereon on behalf of either defendant or the state.
(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i.e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
(3) That if the graphs and examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
a. the examiner’s qualifications and training;
b. the conditions under which the test was administered;
c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and
d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.” (State v. Valdez (1962), 91 Ariz. 274, 283-84, 371 P.2d 894, 900-01.)

The Wisconsin Supreme Court adopted an adaptation of the Valdez formula in 1974. The court found that when a polygraph examination is properly conducted and interpreted the results are sufficiently indicative of truthful and deceptive responses. Admission is justified if the parties agree to comply with certain preconditional safeguards. (State v. Stanislawski (1974), 62 Wis. 2d 730, 741, 216 N.W.2d 8, 14.) Other jurisdictions followed Valdez in allowing admission upon a valid stipulation. See, e.g., State v. Galloway (Iowa 1969), 167 N.W.2d 89; State v. Lassley (1976), 218 Kan. 758, 760, 545 P.2d 383, 385; State v. McDavitt (1972), 62 N.J. 36, 44-47, 297 A.2d 849, 853-55; State v. Souel (1978), 53 Ohio St. 2d 123, 133, 372 N.E.2d 1318, 1323.

The Valdez and Stanislawski cases admit the inherent deficiencies of the polygraph. Each is an attempt to balance the polygraph’s known limited reliability with sufficient safeguards. The Wisconsin Supreme Court in State v. Dean (1981), 103 Wis. 2d 228, 307 N.W.2d 628, demonstrates that those safeguards are not sufficient. While the interrogation can be carefully arranged and closely supervised, the recordings cannot be interpreted with the degree of accuracy that would render them reliable enough for the court to accept them into evidence. In State v. Dean (1981), 103 Wis. 2d 228, 307 N.W.2d 628, the same court that adopted Stanislawski expressly overruled that case, finding it to be error for the trial court to admit stipulated polygraph results. The court in Dean recognized the inconsistency of admitting polygraph evidence on the basis of a stipulation since the stipulation does little if anything to enhance the reliability of polygraph evidence. Recalling United States v. Wilson (D. Md. 1973), 361 F. Supp. 510, the Wisconsin court found that cross-examination may not provide a sufficient basis for the jury to assess the merits of the test and competency of the witness.

“The danger level rises geometrically because of the disproportionate influence the polygraph examination evidence inevitably will exercise, both because it is germane to the credibility on the ultimate finding and because of the consumption of time necessarily involved in examination, cross-examination and battle of experts. The specter of ‘trial by polygraph’ replacing trial by jury is more than a felicitious slogan.” United States v. Wilson (D.Md. 1973), 361 F. Supp. 510, 513.

In conclusion, the court found the conditions of admissibility promulgated in Stanislawski failed to protect the integrity of the trial process, “as they were intended to do.” 103 Wis. 2d 228, 279, 307 N.W.2d 628, 653.

Admission risks confusion and prejudice. “The uncertain impact of polygraph evidence on a jury is a question of substantial concern.” (103 Wis. 2d 228, 278, 307 N.W.2d 628, 653.) The Wisconsin court could not say that a limiting instruction would ensure that the jury put the polygraph evidence in proper perspective. (103 Wis. 2d 228, 238-39, 307 N.W.2d 628, 633.) We agree. There is significant risk the jury will regard such evidence as conclusive. It is the jury’s function, as finder of fact, to determine the credibility of witnesses. A potential trial by polygraph is an unwarranted intrusion into the jury function. It is questionable whether any jury would follow limiting instructions because the polygraph evidence is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi. 0 * (103 Wis. 2d 228, 277, 307 N.W.2d 628, 652, quoting United States v. Alexander (8th Cir. 1975), 526 F.2d 161, 168; United States v. Flores (9th Cir. 1976), 540 F.2d 432, 439; see also Commonwealth v. A. Juvenile (1974), 365 Mass. 421, 447, 313 N.E.2d 120, 135 (Quirico, J., dissenting).

The admission of the polygraph evidence rose to the level of plain error. The error impinges upon the integrity of our judicial system. We reaffirm this court’s position in Zazzetta. Polygraph evidence is not reliable enough to be admitted. The prejudicial effects substantially outweigh the probative value of admitting such testimony. As such “usefulness to the court and jury remains the same, regardless if they are admitted by stipulation or not.” (People v. Zazzetta (1963), 27 Ill. 2d 302, 308.) There is nothing to show that jurors are better able to evaluate the testimony of polygraph examiners where both parties have stipulated that their testimony be heard. No other form of evidence is as likely to be considered as completely determinative of guilt or innocence as a polygraph examination. The evidence was wrongly admitted. Because of the potential impact and substantial influence of the polygraph evidence a new trial is in order. The appellate court and circuit court judgments are reversed. The cause is remanded for a new trial.

Judgments reversed; cause remanded.

JUSTICE MORAN concurs in the judgment.


author: JUSTICE WARD JUSTICE CLARK,

text:
    (No. 53753.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RUSSELL J. LUCAS, Appellee.

      Opinion filed December 18, 1981.

      CLARK, J., specially concurring.
    Tyrone C. Fahner, Attorney General, of Springfield, and Kenneth Boyle, State’s Attorney, of Carlinville (Melbourne A. Noel, Jr., and Cathy Ann Pilkington, Assistant Attorneys General, of Chicago and Gary J. Anderson and Darryl D. Pratscher, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Janet Sinder, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

After a jury trial in the circuit court of Macoupin County, Russell Lucas was convicted of aggravated battery. His motions for judgment notwithstanding the verdict and for a new trial were denied, and he was sentenced to an extended term of six years with a one-year mandatory supervised-release provision under section 5—5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2). The appellate court, with one justice dissenting, reversed and remanded for a new trial. (85 Ill. App. 3d 133.) We granted the People’s petition for leave to appeal.

Early in the morning of June 16, 1979, Larry Bowman was attacked in a crowded tavern in Carlinville. He suffered severe and multiple facial lacerations that required sutures under his nostril and lip and on his cheek and neck. It appears that he was left with a scar from the area of his right eye to his neck. Bowman testified that the defendant approached him at the bar and asked if he would buy the defendant a drink, which Bowman declined to do because Bowman had been “shut off” earlier. Bowman stated that he looked away and then heard glass breaking. He testified that he turned in the direction of the sound and was struck with a glass by the defendant and knocked to the floor. Bowman, however, said he did not actually see the defendant swing at him, nor did he see a glass in the defendant’s hand before or after the incident. There was no direct testimony that a broken glass was in the defendant’s hand. A broken glass with jagged edges was later found on the floor, but it was thrown away by a bartender.

Paul Scott, a bartender who was off duty at the time of the incident, testified that he heard glass breaking and that he saw the defendant without visible provocation strike Bowman. He said Bowman was knocked to the floor and did not fight back. Scott testified that the defendant then bent and stood over Bowman and that he could see the defendant’s right arm moving but could not see what he was doing. Pamela Davis, a sister of Alex Fones, a Carlin-ville police officer who was a prosecution witness, testified that she and her husband were at the end of the bar where the incident occurred. When she first noticed Bowman and Lucas, the defendant was striking Bowman, who fell to the floor and lay there motionless. The witness testified that she had not seen anything in the defendant’s hand. She testified that Bowman “was bleeding very bad. His whole side of his face was cut and he was just covered with blood.” Scott said that while he was trying to pull the defendant off Bowman, the defendant tried to punch Scott, wrestled with him, and exclaimed “I ain’t after you.”

The defendant did not take the stand. The only defense witness, Phil Maguire, testified that Bowman was annoying two women patrons and that the defendant, saying the women were with him, asked Bowman to leave them alone. He said that Bowman said it was none of the defendant’s business and poked the defendant in the chest with his finger and appeared to begin to push him. The defendant hit Bowman with his fist, Maguire said, and both men fell to the floor. The witness said he didn’t notice any blood on the defendant when he left the tavern. Maguire’s testimony, however, was contradicted by that of Mark Boatman. Although Boatman was sitting at the same table as Maguire and was closer to the defendant and Bowman than Maguire, he was unable to hear any of the conversation between the defendant and Bowman. There was testimony that the tavern was very crowded and that there was noise and “loud music.” Boatman’s testimony continued:

“Q. At this point then was anything said between you and Phil Maguire about the incident?
A. Yes, I said something to him, you know.
Q. You said something to him?
A. Something about, well, helping them guys or something and he said it — said wasn’t none of our business and just stay out of it.
Q. Did he say anything else about who started it?
A. Uh — he didn’t know what started it or anything, so we — he said just stay out of the way.”

Shortly after the incident, the defendant was located in another tavern by police officer Fones. He accompanied the officer to the police station only when the officer insisted. Fones testified that when he saw the defendant in the tavern his hands and his clothing were covered with blood. While waiting in the police station, apparently to be interviewed by another policeman, the defendant was sitting and licking a cut on his hand. He asked Officer Fones if it was making him sick and asked him if he wanted to lick the cut. Fones said that he asked the defendant how his hand had been cut and he said “it happened on his plate on the back of his motorcycle as they crossed the railroad track.” The defendant was formally placed under arrest after he had been questioned by the police and identified by Bowman as his attacker.

Based on Maguire’s testimony the defense attorney argued at trial that the defendant had acted in self-defense and, in any event, was not guilty of aggravated battery since the record did not show that he had struck Bowman with a glass.

During closing argument the prosecutor, in the transcript’s remarkably incoherent version, said:

“Look at Mr. Lucas when he was picked up or finally questioned by the Carlinville Police Department. You didn’t hear any story about at that time about, well, this other guy started it or anything like that. He never told him anything about that. Only thing he told the police officer was a darn smart aleck, showed him his blood. That’s all he did. He didn’t say any time other guy started it or anything like that. He just wanted to get out of there. Where did the blood come from all over him? Convenience of the railroad track and cut his hand and it was all over him. Also, what he told the police officers. There seems to be an excuse for everything that has been presented and he asked or has to come up with something, I suppose.”

The statement was not objected to during the argument, nor was it claimed to be error in the defendant’s post-trial motion for judgment notwithstanding the verdict or for a new trial. Rather, in closing argument the defendant argued that Fones was the only witness who had testified that the defendant had had blood on his hands and clothing.

It is clear that, when a defendant fails to make timely objections at trial and in the post-trial motion, any error in closing argument is considered waived. (People v. Jackson (1981), 84 Ill. 2d 350.) A failure to raise an issue in a post-trial motion following a jury trial constitutes a waiver of that issue, and it cannot be urged as a ground for reversal on review. Supreme Court Rule 615(a), however, provides an exception to this rule of waiver where there has been “plain error.” The rule reads in part:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).)

That plain error may be noticed, though not objected to at trial or in a post-trial motion, is illustrated by this court’s decision in People v. Carlson (1980), 79 Ill. 2d 564, 577:

“The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently. Whether or not the erroneous evidence or remarks were objected to at the trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error.”

The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Jackson (1981), 84 Ill. 2d 350; People v. Carlson (1980), 79 Ill. 2d 564; People v. Pickett (1973), 54 Ill. 2d 280.

We consider that the appellate court erred in holding that the prosecutor’s comments constituted plain error. The defendant, through the testimony of Maguire, raised the question of self-defense. When the defendant told Officer Tones that he had cut himself on his motorcycle, he was not making any claim of self-defense. The appellate court considered that the remarks of the prosecutor in closing argument, which we quoted earlier, were a comment on the defendant’s silence as to his defense of self-defense and that this was plain error.

The People contend that the circumstances here do not fall within the ambit of the prohibition against comment on the silence of an accused under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and related decisions. The People contend that in fact there was not a comment on silence and that the prosecutor’s remarks were a comment on statements made in a conversation that basically was prompted or initiated by the defendant.

We need not determine whether or not under the circumstances there was an improper comment on silence, as we do not judge that the plain error rule can be invoked. The evidence was not closely balanced. It is not disputed that the defendant struck Bowman and injured him severely. At least two of the witnesses for the prosecution testified that Bowman did not provoke the attack, that he did not fight back, that there was the sound of broken glass, and that a broken glass with jagged edges was later found on the floor in the tavern. The defendant’s self-defense claim was raised through the testimony of one witness, whose testimony was significantly contradicted by his own companion who had been sitting at his table. Boatman said that Maguire told him that he did not know who had begun the fight. Maguire had testified to hearing conversation between the victim and the defendant. The tavern was crowded and noisy, and Boatman said he could not hear any conversation between the victim and the defendant.

Looking to the other ground for invoking the doctrine of plain error, we consider that in any event there was not error of such magnitude as to clearly deny the defendant a fair trial.

For the reasons given, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE CLARK,

specially concurring:

The prosecution witnesses, the circumstantial evidence and the effective rebuttal of the one defense witness support the majority conclusion that the evidence was not closely balanced. I concur. But I feel we should examine the alleged mistake in determining whether error occurred, before asking whether it rose to the level of plain error.

The majority notes that “[t]he People contend that the circumstances here do not fall within the ambit of the prohibition against comment on the silence of an accused under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and related decisions.” (88 Ill. 2d at 251.) I believe it is clear that the Staté’s Attorney’s remarks do fall within the ambit of Doyle and its progeny, and such remarks are prohibited. In closing arguments the State’s Attorney said: “You didn’t hear any story about at that time about, well, this other guy started it or anything like that. He [the defendant] never told him [the police officer] anything about that. ### He didn’t say 000 anything like that.000.” Those words are unmistakable remarks about the defendant’s silence; as such they unquestionably constitute error.

In Doyle v. Ohio the supreme court recognized that “##l> it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (426 U.S. 610, 618, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245.) This court expressed agreement with the rationale of the Doyle majority in People v. Better (1979), 74 Ill. 2d 514. We hold that the Doyle rule applied, even absent any evidence that the defendant had been given Miranda warnings. We said:

“Since every arrested person has the right to remain silent and may be aware of his right even in the absence of Miranda warnings, post-arrest silence remains ‘insolubly ambiguous.’” (74 Ill. 2d 514, 521.)

The Miranda warnings provide a means by which an accused is aware of certain rights he possesses. They “do not confer rights on a defendant.” (74 Ill. 2d 514, 521.) The critical juncture is the arrest when the defendant is taken into custody and not the police officer’s reading of the Miranda warning.

Recently the United States Supreme Court in Jenkins v. Anderson (1981), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124, held that pre-arrest silence was a proper subject for cross-examination of a suspect at trial. The State contends that the Anderson decision should control the outcome of this case. In Jenkins v. Anderson the prosecutor did not comment upon the silence of the defendant following the arrest, but upon the fact that the defendant had waited two weeks to surrender and had not come forward with the self defense claim posited at trial. The supreme court then held that “impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” (Emphasis added.) (447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) Anderson does not apply to this case. Prior to an arrest there is no need to assert one’s right to remain silent. The occasion for its assertion does not arise until one is taken into custody by officers of the State.

The defendant here did not testify at trial. The prosecutor’s remarks on the defendant’s failure to tell the police of his self-defense claim cannot be construed as impeachment with a prior inconsistent statement. The defendant’s silence was used as substantive evidence from which the prosecution implied that the defendant cut his hand in the altercation at the bar and not on his motorcycle. It is agreed upon that the defendant’s nonassertion of his self-defense claim came after his arrest. The defendant was in custody. I feel it is important to reemphasize our adherence to the holding of People v. Better (1979), 74 Ill. 2d 514, that prosecutorial remarks about an accused post-arrest silence are impermissible. (74 Ill. 2d 514, 521.) The defendant may well be aware of his right to remain silent. It is unfair to deprive him of asserting that right because he knew of it without being informed. To limit Doyle v. Ohio to instances where the Miranda warnings are given “could eviscerate Doyle through the simple expedient of not reading Miranda warnings at the time of arrest.” Weir v. Fletcher (6th Cir. 1981), 658 F.2d 1126, 1132 (the prosecutor’s comments to the jury concerning the defendant’s silence following his arrest but prior to the reading of Miranda warnings violated the defendant’s fifth amendment rights).

I believe the complained-of comments constitute error. I agree, however, that the error does not rise to the level of plain error. We consider plain error in two circumstances: where the error is so fundamental that it impugns the integrity of the judicial process, and where substantial injustice would be done to the defendant in the case. People v. Baynes (1981), 88 Ill. 2d 225, 230-31; People v. Green (1979), 74 Ill. 2d 444, 453 (Ryan, J., specially concurring).

In the former instance it is not necessary to weigh the evidence. Those errors are so basic that they require reversal regardless of the evidence aligned against the defendant. In the latter instance it becomes necessary to weigh the evidence only after an initial inquiry has been answered as to whether an error has been made. I think it is appropriate that the first question be asked and answered. Was there obvious error here? Yes. Was it plain error? No. The evidence was not close. Therefore, while the court does not consider the error here to be “plain error,” in my opinion error did occur. It is only in weighing the evidence that we can determine if this type of error denied the accused a fair trial (People v. Pickett (1973), 54 Ill. 2d 280). However, the balancing should follow a preliminary examination of the prosecutor’s closing remarks. I believe they constituted error but because the evidence was not close, the error did not subject this defendant to a miscarriage of justice.

I hope that this decision will not be construed as a redefining of the lines drawn in Better. Every arrested person has the right to remain silent, whether Miranda warnings are given or not. To assure a defendant that protection and then allow impeachment of, or comments about, the assertion of that privilege is wrong. We found such actions by the State’s Attorney to be error in Better; I do not think that this decision should be viewed as a retreat from that position.


author: JUSTICE UNDERWOOD

text:
    (Nos. 53959, 54148 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BILL TIPTON, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMIE L. RICHARDSON, Appellant.

      Opinion filed November 20, 1981.

    Rehearing denied January 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Nicholas G. Byron, State’s Attorney, of Edwardsville (Melbourne A. Noel, Jr., Thomas E. Holum, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, and Martin N. Ashley and Christopher S. Carroll, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid and Randy E. Blue, Deputy Defenders, and Richard J. Bennett, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.

      Mary Robinson, Deputy Defender, and Marilyn Martin, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

We granted leave to appeal and consolidated these cases to consider whether a trial court has authority to impose as a condition of probation a term of delayed imprisonment to be served during the final months of the probation period. In cause No. 53959 defendant Bill Tipton was convicted in the circuit court of Madison County of unlawful delivery of what was represented to be a controlled substance. He was sentenced to a period of two years’ probation subject to several conditions, including that he serve the last 60 days of his probation period in the county jail. No provision was made for a remission hearing. Tipton appealed the sentence, and the appellate court, in a Rule 23 order (73 Ill. 2d R. 23), vacated the term of imprisonment (People v. Tipton (1980), 85 Ill. App. 3d 1202) based upon its previous decision in People v. Shook (1980), 86 Ill. App. 3d 174.

In cause No. 54148 defendant Jamie Richardson was convicted of battery and sentenced by the Winnebago County circuit court to a probation period of one year, to run concurrently with his probation in a felony case. The February 13, 1979, order imposed particular conditions as follows:

“9. Defendant sentenced to 120 days in County Jail — last 120 days of probation period — Defendant shall appear Oct. 12, 1979 at 9:30 A.M. and Court will consider remitting all or part of sentence.
10. Defendant to follow felony probation directive to obtain education and to appear June 13,1979 at 9:30 A.M. to report progress.
11. If defendant violates probation, sentence to be served upon finding of violation.”

Richardson appeared without counsel at the remission hearing some eight months later. He was advised of an adverse probation report indicating he had violated probation in another case and failed to report to the probation officer in this case. He was also told of the recommendation of the probation officer that he serve the 120 days’ sentence in this case. The trial court refused to modify the sentence at that time but appointed counsel and advised Richardson that he could petition for further hearing. Thereafter, Richardson appeared with counsel and, rather than presenting evidence in his behalf, argued that the action was in reality one to revoke probation under section 5—6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—4), and that a plenary hearing was required by the statute. The record indicates that the trial court considered this argument as a motion to reconsider the decision not to modify. The motion was further argued at a subsequent hearing at which the State made offers of proof consisting of the court’s records of proceedings to revoke the concurrent probation in the felony case. Defendant, in that case, had apparently admitted violating probation by committing one theft, and testimony by cross-examined witnesses had indicated his guilt of an additional theft. Defendant indicated he did not believe the proceedings in the other case, which had resulted in a sentence of 60 days on a work release program, could again be considered here. However, he specifically declined the opportunity to present evidence or cross-examine as to the proffered proof. The trial court denied relief. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), dismissed the appeal as untimely, holding that it had no jurisdiction since defendant attacks were on the propriety of the sentence as originally imposed, which should have been appealed at the time of imposition. 87 Ill. App. 3d 1198.

Defendant Tipton here urges, relying on People v. Shook (1980), 86 Ill. App. 3d 174, that the imposition as a condition of probation of a term of imprisonment to be served at the end of a period of probation is legally impermissible and, in any event, constitutes an abuse of the trial judge’s discretion. Defendant Richardson, whose condition of imprisonment, unlike Tipton’s, was expressly subject to reconsideration, confines his argument here to whether an order denying remission is appealable and whether the procedural protections afforded him in connection with the remission hearing comport with due process.

We consider first the appealability of the order denying remission in Richardson’s case. Section 5—6—4(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—6—4(f)) provides:

“The conditions of probation, of conditional discharge and of supervision may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice to the defendant and a hearing.”

Where the order admitting a defendant to probation fixes a date for a remission hearing, that action may fairly be characterized as a hearing set by the court on its own motion for the purpose of reconsidering the imprisonment question and possible modification of the probation order. Our Rule 604(b) (73 Ill. 2d R. 604(b)), providing that “[a] defendant 000 sentenced to probation may also appeal from an order modifying the conditions of or revoking such a sentence,” supplanted the former statutory provision that “[t]he defendant may appeal from any judgment altering the conditions of or terminating probation” (Ill. Rev. Stat. 1971, ch. 38, par. 117—3(e)). While the effect of the trial judge’s post-hearing action denying remission is to leave the order for imprisonment as it was originally entered, and the judge’s action did not “modify” the conditions of probation in the sense that “modify” is ordinarily considered, we believe that order nonetheless appealable under Rule 604(b). Had the trial judge remitted in part by reducing the 120 days’ imprisonment to 30 or 60 days, thus “modifying” the probation conditions in a more traditional sense, the defendant clearly could have appealed under Rule 604(b). The decision not to modify did, however, remove a contingency which was a part of the original sentence, and, in effect, served as a final order. We distinguish this case from a situation where a defendant, pursuant to section 5—6—4(f), moves for modification of conditions of his probation in a case where the question of remission at some future date was not reserved in the original sentence. The denial of such a motion would not be similarly appealable, as the final order in that case would have been the original sentence, which should have been appealed within 30 days of its entry. We accordingly hold the order denying remission in Richardson’s case appealable under Rule 604(b).

There is, in our judgment, no doubt of the trial court’s authority to impose a period of “continuous” as contrasted to “periodic” imprisonment as a condition of probation under section 5—6—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—6—3). And, while we seriously question the advisability of imposing that imprisonment at or near the end of the probationary period in the absence of unusual circumstances or a request by defendant, we do not doubt the trial judge’s power to do so.

Section 5—6—3, in pertinent part, provides:
“(b) The Court may in addition to other conditions require that the person:
(1) serve a term of periodic imprisonment under Article 7 for a period not to exceed 2 years or the maximum term of imprisonment provided for the offense, whichever is less;
» <* #
(d) The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment in excess of 6 months.
Persons committed to imprisonment as a condition of probation or conditional discharge shall not be committed to the Department of Corrections.
(e) The court may combine a sentence of periodic imprisonment under Article 7 with a sentence of probation or conditional discharge.” Ill. Rev. Stat. 1977, ch. 38, par. 1005—6—3.

In our judgment the legislative history of subparagraph (d) clearly indicates the intent to authorize a term of continuous imprisonment as a condition of probation. The court is not limited to conditions of periodic imprisonment, for the term “imprisonment” as defined in section 5—1—10 specifically omits periodic imprisonment. When the General Assembly intended to indicate periodic imprisonment, it did so, as in subparagraphs (b)(1) and (e), using the phrase “periodic imprisonment under Article 7.” Prior to amendment in 1973 subparagraph (d) read: “The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment except under Article 7.” (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—6—3(d).) The 1973 amendment struck “except under Article 7,” substituted “in excess of 6 months,” and added the second sentence. (1973 Ill. Laws 3037.) The conclusion is inescapable that the intention of the legislature was to allow a term of continuous imprisonment as a condition of probation subject only to the limitation that it be not longer than six months and be served elsewhere than in the Department of Corrections.

Both defendants rely on the appellate court’s holding in People v. Shook (1980), 86 Ill. App. 3d 174, that the trial court is without authority to condition probation upon a jail term to be served at the end of the probation period. Alternatively, Tipton argues that he is entitled to a remission hearing before the imprisonment is served, and Richardson argues that his remission hearing should have embraced the procedures in section 5—6—4(c) concerning probation-revocation hearings.

In Shook the trial court had conditioned probation upon a term of 60 days’ imprisonment to be served at the end of the probation period, and provided for reconsideration of this condition prior to the time being served. The appellate court, relying on section 5—8—1(d) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—1(d)), which deals only with felony sentences, held that the trial court lost jurisdiction to modify sentences 30 days after sentencing. Since the trial court would be without jurisdiction to reconsider the sentence, and reconsideration was a part of the sentence, the condition of imprisonment could not stand. Additionally, in a supplemental opinion denying rehearing, the court said that the condition was “legally improper” because it would interfere with “rehabilitation of a repentant offender.” The Shook decision was cited by the appellate court here as controlling its decision to vacate Tipton’s term of imprisonment.

We cannot accept the Shook holding. As noted by the dissenting justice in Shook, the trial court clearly has specific authority to modify conditions of probation under section 5—6—4(f), quoted earlier herein. The legislature appears to have intended that section to vest the trial courts with authority to deal with changing conditions during the probation periods. This specific authority controls over the general prohibition against altering felony sentences after 30 days have elapsed.

Nor do we agree with the Shook majority that there exists any legal impediment to imposing the term of imprisonment at the end of the probation period. The only time restriction expressed in section 5—6—3(d) is one limiting the duration of the imprisonment to six months. There are occasionally reasons why delaying the confinement period might better suit the particular circumstances of a given case, and the trial judge has a broad but not unlimited discretion in this area. (People v. Rege (1976), 64 Ill. 2d 473, 480-81; People v. Bolyard (1975), 61 Ill. 2d 583, 586; People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 554.) Although Tipton claims that the trial court abused its discretion in conditioning his probation on a delayed term of imprisonment, the decision to impose the sentence of probation and the condition of imprisonment was within the court’s discretion.

Despite our holding, and as earlier indicated, we have considerable doubt as to the wisdom of delaying a sentence of continuous imprisonment. The State lauds it as a judicially created “innovative sentencing procedure” having “obvious benefit both for the offender and for the criminal justice system.” Delayed imprisonment, to the extent it is prompted by legitimate concern for the particular circumstances of a given case, i.e., avoiding loss of employment or educational interruptions, family illnesses, etc., may well benefit a defendant or those dependent upon him. But to the extent that it is used as a deterrent to misconduct during the probationary period, we would have thought the potential for revocation of probation with its heavier penalty would suffice. Probation, even with a condition of imprisonment, is more rehabilitative than punitive in nature. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 785, 36 L. Ed. 2d 656, 663, 93 S. Ct. 1756, 1761; People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 556.) If the trial court determines that, in the interest of rehabilitation of the defendant, a period of imprisonment is necessary to a successful probation, it would seem that, absent persuasive reasons to the contrary, the confinement should occur early in the probationary period. Imprisonment at the end of the rehabilitative process could well do more harm than good. In addition to our concern regarding counterproductivity, the imposition of delayed confinement subject to remission could degenerate into a substitute for the revocation of probation to which statutorily incorporated due process requirements now apply.

We turn now to the due process questions raised by defendants: Is a remission hearing required if the condition of imprisonment is delayed, and, if a hearing is required, or granted, what rights does defendant have? These questions cannot be answered without reference to the context in which they arise. In defendant Tipton’s case, as earlier noted, the imprisonment order was unequivocal, and nothing in the probation order even hinted at the possibility of remission. The only statutory provision which could be thought to provide a remission hearing is section 5—6—4(f), earlier quoted, which authorizes modification of the conditions of probation on the motion of the court, its probation officer or defendant. Since the court had not indicated an intention to consider remission and defendant did not file a motion requesting modification, no hearing prior to serving the delayed confinement was necessary.

Richardson’s case differs somewhat. There the court specified in the original order of probation a definite date upon which defendant was to appear at which the court would consider remission of all or part of the delayed imprisonment.

In these circumstances the reasoning of the Supreme Court in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100, is relevant. There, prison inmates eligible for discretionary parole raised a due process challenge to Nebraska parole board proceedings. The court described the hearings before the parole board:

“At the Board’s initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity to insure, first, that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole.” (442 U.S. 1, 15, 60 L. Ed. 2d 668, 680, 99 S. Ct. 2100, 2108.)

The court noted that due process considerations were quite different for one already out on parole and facing revocation as in Morrissey v. Brewer (1972), 408 U.S. 471, 482, 33 L. Ed. 2d 484, 494-95, 92 S. Ct. 2593, 2600, described as one “being deprived of a liberty one has“ — and one in prison seeking parole, described as one “being denied a conditional liberty that one desires” (442 U.S. 1, 9, 60 L. Ed. 2d 668, 676, 99 S. Ct. 2100, 2105). The court stated that a legitimate expectation of release may trigger some due process considerations but held that the hearings provided were sufficient. 442 U.S. 1, 15-16, 60 L. Ed. 2d 668, 680-81, 99 S. Ct. 2100, 2108.

Similarly, there are in our judgment distinct differences between the legitimate expectations of those facing terms of delayed imprisonment set as unequivocal conditions of probation at the time of sentencing and those, like Richardson, whose terms of delayed imprisonment are expressly subjected to the results of a remission hearing fixed in the order imposing the imprisonment. The former have no reason to expect remission; the latter have been encouraged to believe that they may escape imprisonment by complying with the other conditions of probation. As to them, legitimate expectations of a hearing similar to that provided by sections 5—6—4(b) and (c) have been raised under the due process considerations outlined in Greenholtz, with the right to notice, counsel, and to present relevant evidence. Similar considerations would apply, in our opinion, to section 5—6—4(f) motions by the probation officer or the court itself to modify the conditions of probation in a manner more burdensome to defendant.

However, as to those cases where the original order of probation did not provide for a remission and neither the court nor probation officer has sought modification under section 5—6—4(f), due process, in our judgment, requires much less. A defendant in those circumstances who, himself, moves to modify the term of imprisonment or other conditions of probation has “no more than a mere hope that the benefit will be obtained” (Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 11, 60 L. Ed. 2d 668, 677, 99 S. Ct. 2100, 2105). Constitutional requirements are met if defendant is permitted to appear personally and to present any supporting documentary evidence. The court, in its discretion, may, but is not required to, allow the defendant to be represented by counsel and to call witnesses. No constitutional provision is offended by placing upon him the burden of establishing why the modification should be made. As in Greenholtz, where the court pointed out that one does not have a constitutional right to parole release (442 U.S. 1, 7, 60 L. Ed. 2d 668, 675, 99 S. Ct. 2100, 2104), neither does a probationer have the right to release from the conditions originally imposed. But where our statute gives the right to request modification, the expectation also arises that the motion will be seriously considered under circumstances which minimize the risk of error without imposing burdensome procedures upon the States. (442 U.S. 1, 12-13, 60 L. Ed. 2d 668, 679, 99 S. Ct. 2100, 2106-07.) We think that this procedure meets these requirements.

In Richardson’s case, we note that he was provided with counsel and ample opportunity to present evidence in his behalf. He had notice of the hearing from the time of sentencing and notice of the adverse probation officer’s report from the day of his first appearance at the remission hearing. At that time, counsel was appointed and Richardson was advised that he could seek reconsideration. He subsequently expressly declined to present evidence or cross-examine, electing instead to challenge the earlier proceeding on what we view as jurisdictional grounds. Although the trial judge advised Richardson in the original remission hearing that he would not remit the sentence, he also then advised him that further evidence could be presented. It is clear that the trial judge’s initial decision not to remit was not regarded by him as final, and the provisions made for further hearings afforded Richardson what we believe was adequate opportunity to be heard. He cannot now attack the final order as arbitrary and capricious when he waived his opportunity to do so at the proper time. People v. Lykins (1979), 77 Ill. 2d 35, 38; People v. Roberts (1979), 75 Ill. 2d 1, 10.

In both cases the judgments of the appellate court are reversed and the judgments of the circuit courts are affirmed.

Appellate court reversed; circuit courts affirmed.