{ "id": 5812613, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BERNICE WALLER, Appellee", "name_abbreviation": "People v. Waller", "decision_date": "1977-09-20", "docket_number": "No. 48462", "first_page": "381", "last_page": "388", "citations": [ { "type": "official", "cite": "67 Ill. 2d 381" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "56 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404955 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0306-01" ] }, { "cite": "10 Ill. 2d 208", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2725221 ], "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0208-01" ] }, { "cite": "43 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844436 ], "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0251-01" ] }, { "cite": "30 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826279 ], "weight": 2, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0110-01" ] }, { "cite": "21 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2729369 ], "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0496-01" ] }, { "cite": "36 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2632457 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0888-01" ] } ], "analysis": { "cardinality": 514, "char_count": 9461, "ocr_confidence": 0.89, "pagerank": { "raw": 2.1958838802138718e-07, "percentile": 0.7745739230356673 }, "sha256": "dba395a07f2632c63e7e0be75719efd42f0cafd87abcfc2f7bc5f34421eacd8e", "simhash": "1:f030fcb1527da6b3", "word_count": 1589 }, "last_updated": "2023-07-14T21:08:31.746559+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BERNICE WALLER, Appellee." ], "opinions": [ { "text": "MR. JUSTICE CLARK\ndelivered the opinion of the court:\nAfter a bench trial in the circuit court of Cook County, the defendant, Bernice Waller, was convicted of one count of voluntary manslaughter. The appellate court reversed, one judge dissenting (36 Ill. App. 3d 888), and we granted the State\u2019s petition for leave to appeal.\nThe appellate court held that the trial court had erred in admitting the rebuttal testimony of a witness who (1) had remained in the courtroom in violation of an order excluding witnesses, and (2) whose testimony was not confined to rebuttal of Mrs. Waller\u2019s testimony. We reverse, because we find that the defense failed to preserve its objection to the witness\u2019 alleged violation of the exclusionary order, and because the witness\u2019 testimony was admissible in rebuttal of the defendant\u2019s testimony.\nOn March 10, 1972, Ronald Waller suffered a fatal wound from a knife wielded by his wife, the defendant. There were no witnesses to the occurrence. Mrs. Waller was charged with murder.\nAt trial, before the first witness was sworn, the court asked whether there would be a motion for the exclusion of witnesses. Both the assistant State\u2019s Attorney and defense counsel responded that their witnesses already had been excluded. The State then called Officer Thelen, one of the first police officers to arrive on the scene. Officer Thelen testified that he had found the deceased near the front of the apartment, on his back with a stab wound in his stomach, and that Mrs. Waller had volunteered that \u201cshe had stabbed her husband and it was an accident.\u201d The State also called Investigator Savage, who had arrived on the scene somewhat later. He testified that Mrs. Waller told him that, during the course of an argument with the deceased, she had gone into the kitchen to secure a knife, and that, upon her return to their bedroom, the deceased had \u201cadvanced towards her and accidentally pushed himself into the knife.\u201d\nAt the close of the State\u2019s evidence the defense requested and the court denied a directed verdict of not guilty.\nThe defense called Mrs. Waller\u2019s grandmother, who testified to previous assaults upon Mrs. Waller by the deceased. Mrs. Waller also testified to the previous assaults, and gave her version of the fatal quarrel:\n\u201cHe ran me into the kitchen and I got the knife off the sink and I came back not intentionally to get the knife and use it on him, but so I could get a chance to call my mother. He went berserk and ran up on the knife.\u201d\nMrs. Waller\u2019s own attorney then asked her, \u201cHad you said anything to him regarding the use of the knife or any words to that effect?\u201d, to which she responded, \u201cNo.\u201d\nOn cross-examination, Mrs. Waller denied having received a box of candy on Valentine\u2019s Day 1972. In addition, the following exchange took place:\n\u201cQ. Did you have any conversations with your husband from Valentine\u2019s Day, 1972, until the time that he was killed; did you have any conversations with him in relation to any other men that he might have thought you were seeing?\nA. No.\u201d\nOn rebuttal, the State sought to introduce the testimony of Roxy Brewer, sister of the deceased, who had been present during the testimony of the previous witnesses. Defense counsel\u2019s objection led to the following colloquy:\n\u201cTHE COURT: There was a motion to exclude all witnesses, is that correct?\nASSISTANT STATE\u2019S ATTORNEY: *** [C] ounsel never made a motion to exclude.\nTHE COURT: The court on its own made a motion to exclude.\nDEFENSE COUNSEL: I then stated I\u2019m taking my witness out of court room and this lady sat throughout.\nASSISTANT STATE\u2019S ATTORNEY: That\u2019s correct.\nTHE COURT: And as far as the Court is concerned I rule there is a motion to exclude.\u201d\nThe court permitted Mrs. Brewer to testify, but took the admissibility of her testimony under advisement, stating, \u201cIn [any] event, the Court upon submission of law to that point, will then rule as to whether this testimony will be admissible or not.\u201d\nRoxy Brewer contradicted her sister-in-law\u2019s denial of having received a box of candy on Valentine\u2019s Day. In addition, Mrs. Brewer testified that in late February 1972, while in an apartment on the floor below the Waller apartment, she overheard Mrs. Waller threaten the deceased, \u201cIf you call me a bitch again I\u2019ll stab you with this knife.\u201d Mrs. Brewer further testified that upon hearing this threat, she ran upstairs and removed a knife from the defendant\u2019s hand. On surrebuttal, Mrs. Waller denied that the above event occurred.\nFinally, at the close of trial the court stated: \u201cI had questions with reference ***[to] the rebuttal witness and the issue of exclusion. This will be submitted to the Court, and I will therefore rule on this matter next Friday, a week from today at 9:30 in the morning.\u201d The record of the subsequent hearing reflects neither the submission of any authority on the issue by defendant, nor any express ruling on the issue by the court prior to finding the defendant guilty of voluntary manslaughter. In explaining its verdict, the court simply stated: \u201cThis Court cannot accept a claim that the husband was impaled upon the knife as a result of his own thrust or endeavor.\u201d\nIt is well established in Illinois that when a court reserves its ruling on the admissibility of evidence, the objecting party must insist upon a subsequent ruling, or else risk waiving its objection to that evidence. (People v. Kostos (1961), 21 Ill. 2d 496, 499.) While the reviewing court still may, in the interests of justice, take note of objections thus waived, it should do so only in cases involving plain error, or defects affecting substantial rights. (58 Ill. 2d R. 615(a).) We find no such defects in the instant case. Rather, we consider this case to be analogous to People v. Miller (1964), 30 Ill. 2d 110, wherein a police officer who had remained in the courtroom in violation of an order excluding witnesses was permitted to testify. This court held:\n\u201cIt was within the discretion of the trial judge to permit the testimony of the police officer in rebuttal even though witnesses had been excluded. [Citations.] The failure of defendant to object to such testimony clearly precludes him from alleging an abuse of discretion before this court. [Citation.] \u201d (30 Ill. 2d 110, 114.)\nSimilarly, in the instant case, the failure to insist upon a ruling on the objection waived the issue, where the court stated that it reserved its ruling, unsuccessfully requested a \u201csubmission of law\u201d on the subject from counsel, and then, sitting as trier of fact, rendered a verdict without ruling on the admissibility of the testimony. We reject defendant\u2019s argument that the court\u2019s statement that it found the defendant\u2019s testimony incredible necessarily implied that the court was, in effect, ruling on the admissibility of testimony tending to impeach that of the defendant. Accordingly, we find that the defense failed to preserve its objection to rebuttal testimony by Mrs. Brewer.\nMrs. Waller also argues that because Mrs. Brewer\u2019s testimony would have been admissible as part of the State\u2019s case in chief, that testimony should not have been admitted on rebuttal. However, the order of proof in a criminal case is subject to the broad discretion of the trial court. The court may admit rebuttal evidence which would tend to \u201cexplain, repel, contradict or disprove the evidence of the defendant,\u201d even if such evidence also would have been admissible as part of the State\u2019s case in chief before the State closed. (People v. Daugherty (1969), 43 Ill. 2d 251, 255.) In other words, \u201c[a]lthough testimony that would be proper as evidence in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court and such rulings will ordinarily not be set aside upon review.\u201d (People v. Lion (1957), 10 Ill. 2d 208, 217.) Evidence regarding the circumstances of prior quarrels between Mrs. Waller and the decedent is particularly appropriate on rebuttal to refute or explain the defendant\u2019s version of her relationship with the decedent, or where the defendant claims that the death of the decedent was an \u201caccident.\u201d See People v. Benedik (1974), 56 Ill. 2d 306.\nIn the instant case, Mrs. Waller\u2019s testimony that her husband \u201cran up on the knife,\u201d that she had not, in the course of the fatal quarrel, \u201csaid anything to him regarding the use of the knife or any words to that effect,\u201d and that she returned to the bedroom with the knife \u201cnot intentionally to get the knife and use it on him,\u201d entitled the trial court to permit rebuttal testimony as to the circumstances of the prior domestic quarrel. (See People v. Benedik; People v. Lion.) We therefore hold that Roxy Brewer\u2019s testimony was admissible in rebuttal of the defendant\u2019s testimony.\nThe judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.\nAppellate court reversed; circuit court affirmed.", "type": "majority", "author": "MR. JUSTICE CLARK" } ], "attorneys": [ "William J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel and Jayne A. Carr, Assistant Attorneys General, of Chicago, and Laurence J. Bolon and Linda Ann Miller, Assistant State\u2019s Attorneys, of counsel), for the People.", "James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and John Thomas Moran, Assistant Public Defenders, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 48462.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BERNICE WALLER, Appellee.\nOpinion filed September 20, 1977.\nWilliam J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel and Jayne A. Carr, Assistant Attorneys General, of Chicago, and Laurence J. Bolon and Linda Ann Miller, Assistant State\u2019s Attorneys, of counsel), for the People.\nJames J. Doherty, Public Defender, of Chicago (Judith A. Stewart and John Thomas Moran, Assistant Public Defenders, of counsel), for appellee." }, "file_name": "0381-01", "first_page_order": 395, "last_page_order": 402 }