{ "id": 2870213, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Lee Lott, Defendant-Appellant", "name_abbreviation": "People v. Lott", "decision_date": "1975-11-28", "docket_number": "No. 74-53", "first_page": "779", "last_page": "789", "citations": [ { "type": "official", "cite": "33 Ill. App. 3d 779" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "161 N.E. 857", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "330 Ill. 474", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5205286 ], "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill/330/0474-01" ] }, { "cite": "303 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 1079", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688842 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/1079-01" ] }, { "cite": "178 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill.2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2796020 ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0320-01" ] }, { "cite": "241 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill.App.2d 45", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323239 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0045-01" ] }, { "cite": "275 N.E.2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill.2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2910872 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0416-01" ] }, { "cite": "320 N.E.2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill.App.3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5310098 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0163-01" ] }, { "cite": "207 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill.2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill.2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "230 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill.2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2862080 ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0184-01" ] }, { "cite": "286 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill.App.3d 858", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468989 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0858-01" ] }, { "cite": "210 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill.2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884925 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0134-01" ] }, { "cite": "310 N.E.2d 854", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2614023 ], "weight": 4, "pin_cites": [ { "page": "942" }, { "page": "942" }, { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0940-01" ] }, { "cite": "330 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill.2d 152", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414894 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0152-01" ] }, { "cite": "271 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill.App.2d 1095", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2531100 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/1095-01" ] }, { "cite": "309 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill.2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "310 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2613225 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0527-01" ] }, { "cite": "281 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.App.3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2915673 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0585-01" ] }, { "cite": "293 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App.3d 799", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853984 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0799-01" ] }, { "cite": "287 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill.App.3d 427", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2669976, 2672732 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0427-02", "/ill-app-3d/7/0427-01" ] }, { "cite": "224 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill.2d 524", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378747 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0524-01" ] }, { "cite": "297 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill.2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934127 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0372-01" ] }, { "cite": "205 N.E. 2d 729", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "32 Ill.2d 299", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840300 ], "opinion_index": 1, "case_paths": [ "/ill-2d/32/0299-01" ] } ], "analysis": { "cardinality": 960, "char_count": 22669, "ocr_confidence": 0.752, "pagerank": { "raw": 3.038902961023596e-07, "percentile": 0.8551282333448784 }, "sha256": "3797eb6da2188b20573a648936eb601d6d9f45f50ef0b0bd2dad13bc22027584", "simhash": "1:a20fb6fd3eca0df6", "word_count": 3823 }, "last_updated": "2023-07-14T15:25:47.184380+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Lee Lott, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STOUDER\ndelivered the opinion of the court:\nAfter a jury trial in the circuit court of Rock Island County, the defendant, Freddie Lee Lott, was convicted of armed robbery.\nOn this appeal, the defendant contends the trial court committed error when it denied his motion for discharge under the four-term rule (Ill. Rev. Stat., ch. 38, par. 103\u20145(a)) and his motion to suppress evidence.\nThe defendant was arrested and incarcerated on April 19, 1973. The grand jury returned a one-count indictment of armed robbery against him on May 8, 1973. The defendant remained in custody until his trial on August 27, 1973.\nOn August 20, 1973, the defendant moved for discharge, alleging that the State had failed to comply with the speedy trial requirement. After a hearing was held, the motion was denied.\nThe defendant relies upon section 103 \u2014 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 103\u20145(a)) which provides that:\n\u201cEvery 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 * *\nThe defendant filed numerous pretrial motions. Because of the view which we take of this case, we need not recite the entire proceedings before the trial court.\nOn May 30, 1973, the defendant moved to suppress evidence. On June 1, 1973, during a hearing on another motion, the People provided the defendant with a report, previously requested, of the arresting officer who had searched defendant\u2019s automobile. The defendant indicated that he was ready to proceed on the motion to suppress. The People were also ready to proceed, but the court could not hear the motion because of other scheduled matters. As a result, defense counsel requested the prosecution to set a hearing on the motion, since the People would have to assemble the witnesses. Defense counsel included a similar request, on June 5, 1973, in an unrelated answer filed with the court. No hearing date was set by the prosecution and so the defendant set a hearing date on July 16, 1973 for August 3, 1973. (Although the motion was actually heard on July 26,1973, that factor would not change the result we reach.)\nThe controlling question in determining if the defendant is entitled to discharge on the 120-day rule is whether the delay of the trial beyond 120 days was occasioned by the defendant. If the delay is attributable to the defendant\u2019s actions, he is not entitled to discharge. The criterion in each case is whether the defendant\u2019s acts in fact caused or contributed to the delay. The purpose of the rule is to prevent a \u201cmockery of justice\u201d either by the State\u2019s technical evasion of the right to speedy trial, or by the defendant\u2019s discharge after a delay in fact caused by him. People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129; People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242.\nWhere the defendant causes delay, the 120-day period is tolled and begins to run anew from the date to which the cause is continued. People v. Gulick, 7 Ill.App.3d 427, 287 N.E.2d 727; People v. Cornwell, 9 Ill. App.3d 799, 293 N.E.2d 139; People v. Ellis, 4 Ill.App.3d 585, 281 N.E.2d 405.\nSince the time between the defendant\u2019s arrest on April 19, 1973, and the trial on August 27, 1973, only slightly exceeded 120 days, if the defendant was responsible for the delay, he would not be entitled to discharge under the statute. Cf. People v. Leonard, 18 Ill.App.3d 527, 310 N.E.2d 15.\nUnder section 114 \u2014 12 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 114\u201412), the defendant has the primary responsibility for establishing the factual or legal basis for a motion to suppress. The defendant knew that a disposition of this motion would necessitate some delay. Over a month and a half elapsed before the defendant set a hearing on this motion. In response, tire defendant urges that he requested the prosecution to set a hearing date, since the People would have to assemble the witnesses. The defendant\u2019s consideration in attempting to avoid inconvenience to witnesses does not relieve him of the responsibility of having his pretrial motion heard. (People v. Stock, 56 Ill.2d 461, 309 N.E.2d 19.) The defendant cannot, by such an assertion, attribute blame to the prosecution for failing to set a hearing date with respect to a matter for which he was primarily responsible. (See People v. Ross, 132 Ill.App.2d 1095, 271 N.E.2d 100.) We hold, therefore, that the defendant was responsible for the delay occasioned by the motion to suppress evidence.\nWe are mindful of the recent opinion in People v. Lewis, 60 Ill.2d 152, 330 N.E.2d 857, in which the Supreme Court declined to reinterpret the 120-day rule to exclude from the computations any delays occasioned by the defendant. We note also that the record in the case at bar demonstrates several instances of delay attributable to the State. Nevertheless, the authorities dictate the result we reach.\nHaving found that the trial court properly denied the defendant's motion for discharge, we must consider the ruling on the motion to suppress evidence.\nOn April 18, 1973, at approximately 10 P.M., an armed robbery of a service station was reported to the Rock Island Police. The complaining witness, an attendant at the station, described the offender as a black man with a bayonet, wearing a blue denim coat, blue jeans, black shirt and a black hat.\nEarly the following morning, at 2:30 A.M., the defendant was driving' a vehicle heading west on Blackhawk Road in Rock Island. State Trooper Terry Vujakovich, approaching from the opposite direction, noticed that defendant\u2019s vehicle was proceeding at five miles per hour, considerably below the minimum of 35 or 45 miles per hour. The trooper turned his vehicle around and stopped defendant, pulling him over into a driveway. Vujakovich noticed there were no license plates on the car. Upon inquiry, the defendant stated that something went wrong with the gas pedal. The defendant was unable to produce a driver\u2019s license when requested to do so by the trooper. The defendant stated that he had left it in his other pants and that it had expired in January. Defendant also stated the car belonged to one Lynn Brooks. At this point, the trooper arrested defendant and removed him to the police car.\nThe State trooper called in for a driver\u2019s license check. While waiting for the reply to the license check, the trooper walked to defendant\u2019s vehicle and flashed a light on the \u201clicense applied for\u201d sticker, located on the front windshield on the passenger side. While viewing the sticker, he noticed an object on the floorboard underneath the front seat on the passenger side. A coat covered the object but about one-half of a handle was visible.\nAt this time Corporal Robinson arrived on the scene to determine if assistance was needed. Corporal Robinson checked the sticker and observed the object in the car. At the same time, Trooper Vujakovich opened the car door and Corporal Robinson reached in and picked up the object, a bayonet. The officers then advised defendant that he was under arrest for a weapons charge and escorted him to the Rock Island County Jail.\nAfter conferring with detectives who were investigating the service station robbery, Trooper Vujakovich procured a warrant to search the car defendant had been driving. In the course of this search, the trooper seized a black hat and a wig.\nOn May 8, 1973, the grand jury returned a one-count indictment of armed robbery against defendant.\nThe defendant contends that the trial court erred in denying a motion to suppress evidence seized pursuant to the warrantless search. The defendant further urges that the evidence seized pursuant to the warrant should have been suppressed as \u201cfruits of the poisonous tree.\u201d\nIn response, the People maintain that no search occurred, since the bayonet was in plain view when the trooper seized it. Alternatively, the People contend that, even if a search did occur, here the search falls into one of the recognized exceptions to the warrant requirement.\nTrooper Vujakovich, while flashing his light on the \u2018license applied for\u201d sticker, observed what he described in his police report as \u201csomething sticking out under the seat.\u201d\nA review of Trooper Vujakovich\u2019s testimony at the suppression hearing and at the trial is necessary to properly consider these arguments.\nAt the hearing on the motion to suppress Trooper Vujakovich testified that, while flashing his light on the sticker, he saw \u201csomething\u201d which he believed to be a weapon of some sort. The trooper conceded that he could not see what it was. He further conceded that he only had suspicions and beliefs and no \u201chard facts\u201d upon which to base such beliefs. The trooper admitted that he could not identify the object as a bayonet until his partner had pulled it out of the car. The trooper did not connect the defendant with the armed robbery until the defendant was taken to the county jail.\nAt the suppression hearing the following colloquy took place:\n\u201cQ. Where was the \u2018something\u2019 you spotted?\nA. The \u2018something\u2019 I spotted was on the floorboard on the passenger side as I looked at the sticker.\nQ. You could see it through the front window?\nA. Yes.\nQ. But you couldn\u2019t, at this point and time, tell what the \u2018something\u2019 was?\nA. No.\u201d\nOn cross-examination, at trial, Trooper Vujakovich testified as follows:\n\u201cQ. And you weren\u2019t able to tell what it was until you or your partner pulled it out?\nA. Yes, sir; that\u2019s correct.\nQ. Prior to the time you or your partner pulled it out, it was covered by a coat?\nA. Partially covered, yes, sir.\nQ. So much of it was covered that you couldn\u2019t tell it was a knife?\nA. Yes, sir, or a bayonet.\nQ. At the time the corporal pulled it out, you didn\u2019t know what it was?\nA. No.\u201d\nThe case of People v. Rogers, 18 Ill.App.3d 940, 310 N.E.2d 854, presents a factual pattern similar to that which exists in the case at bar. In Rogers, a police officer stopped the automobile driven by the defendant because he had not properly signaled a right turn. At a hearing on a motion to suppress' evidence, the officer testified that:\n\u201c \u2018After I stopped the defendant and he did not produce a driver\u2019s license, I had occasion to look into the vehicle. I noticed the rear seat was pulled up and I noticed an object sticking from under it. I saw the barrel portion of a .12 gauge sawed-off shotgun. At that time I did not know that it was a shotgun. Approximately two or three inches of it was showing.\u2019 \u201d (18 Ill.App.3d 940, 942.)\nDefense counsel protested the trial court's ruling denying the motion to suppress the shotgun. It was urged that the officer had conducted a search without probable cause because he admitted that prior to conducting the search he did not know that the object in question was a shotgun. The judge then addressed the following question to the police officer:\n\u201c \u2018THE COURT: When you observed this object sticking out, what did it appear to you to be?\nTHE OFFICER: It appeared to be a gun.\u201d\u2019 (18 Ill.App.3d 940, 942.)\nThe judge again denied the defendant\u2019s motion.\nOn appeal, the court in Rogers held the shotgun was in plain view, even though the officer \u201cwas unable specifically to identify the nature of the gun upon first observation.\u201d\n\u201cOur examination of the officer\u2019s testimony convinces us that he saw what he befieved to be a gun barrel protruding from beneath the rear seat and that upon further investigation he found it to be a sawed-off .12-gauge shotgun.\u201d 18 Ill.App.3d 940, 943.\nIn the case at bar, the trooper\u2019s testimony was sufficient to establish that he saw what he believed to be a weapon of some sort protruding from beneath the front seat, and that upon further investigation he found it to be a bayonet. As in Rogers, it is of no moment that the trooper was unable to specifically identify the bayonet upon first observation. We therefore hold that the trial court properly determined that the officer\u2019s testimony was credible and that the bayonet handle was visible to him.\nThe law in Illinois is that a search impfies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view. (People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530.) The bayonet was visible and in plain view, and therefore no search did occur. (See People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745.) Accordingly, the trial court properly denied the defendant\u2019s motion to suppress the bayonet.\nThe motion to suppress the black hat and the wig, seized pursuant to a search warrant, was also properly denied since the trooper had probable cause to believe that the defendant had committed an offense.\nDefendant\u2019s reliance on People v. Tate, 38 Ill.2d 184, 230 N.E.2d 697, is misplaced. That case involved a seizure of an envelope within which were found policy slips. There, the plain view doctrine was rejected because neither the envelope nor its visible contents, gave to the police an indication of their illicit nature. By contrast, in the instant appeal the objective facts upon which further investigation was justified were the viewing of the bayonet handle, the operation of defendant\u2019s vehicle considerably below the speed limit, and the lack of a driver\u2019s license. For these reasons, the plain view doctrine was properly applied.\nFinally, the defendant urges that he was prejudiced by the denial of a continuance in order to rebut the testimony of a surprise witness for the prosecution.\nThe record reveals that, on rebuttal, the prosecution presented Richard Nitz, a former cellmate of defendant, who testified Lott had admitted committing the robbery for which he was on trial as well as three other robberies. The prosecutor claimed he did not know about the witness until a few moments before the testimony was offered. Defense counsel did not know of tire witness until the testimony was offered. The witness testified that seven or eight other prisoners had been present when defendant made the admission, but remembered the name of only one of those present.\nThe prosecution was initially informed of Nitz\u2019s desire to testify by DeWitt Babers, who was in jail on charges which were, according to defendant\u2019s brief, similar to those alleged against the defendant. Before Nitz testified, there was testimony that Babers had beaten Nitz and blackened his eye. Nitz denied that this beating was an attempt by Babers to force him to testify against Lott.\nAfter the trial, defense counsel obtained six affidavits from prisoners and guards at the jail to the effect that Nitz admitted lying on the stand because of intimidation from Babers. These affidavits were filed as a supplement to defendant\u2019s post-trial motion.\nNitz admitted that he did not inform the prosecutor of Lott\u2019s statement until the day he testified.\nThe defendant moved for a continuance to secure witnesses to rebut Nitz\u2019s testimony. The motion was denied and the trial proceeded. As surrebuttal evidence, defendant testified that he never made the statement attributed to him by Nitz. He also stated Nitz had offered to testify that Babers had committed the offense in exchange for cigarettes.\nThe People contend that the defendant waived this question for purposes of appeal because he failed to include it in his written post-trial motion. The post-trial motion and the supplemental post-trial motion made several assignments of error regarding the procedure surrounding the admission of the surprise rebuttal testimony. Although the argument relating to the continuance was not made in express terms by defense counsel in the post-trial motion, it was, by necessary implication, before the court.\nGenerally, the failure to raise an issue in a written motion for a new trial constitutes a waiver of that issue and cannot be urged as ground for reversal on review. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856.) The purposes of this rule are to obviate the necessity to appeal the case should the court pass favorably on the issue raised in the motion, and to give the reviewing court the benefit of the trial judge\u2019s reasoning should he rule unfavorably to the defendant. People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76.\nIn the instant case we believe the waiver rule should be relaxed. The continuance issue was adequately presented to the trial court on the motion to grant it. We have the benefit of counsel\u2019s arguments and the court\u2019s ruling in that regard. Because we think that defendant may have been prejudiced if his claim is well founded, we will consider the issue. People v. Nunez, 24 Ill.App.3d 163, 320 N.E.2d 462.\nAll motions for continuance are addressed to the discretion of the trial court. Such a motion is improperly denied when it appears that the refusal to grant additional time has in some manner embarrassed the defendant in the preparation of his defense and thereby prejudiced him. People v. Canaday, 49 Ill.2d 416, 275 N.E.2d 356.\nWhether there has been an abuse of discretion in denying a motion for continuance depends upon the particular facts of each case. People v. Bond, 99 Ill.App.2d 45, 241 N.E.2d 218.\nWe must agree with defendant that the record in the instant case does not indicate the exercise of sound discretion.\nIn People v. Kuczynski, 23 Ill.2d 320, 178 N.E.2d 294, a witness identified the defendant at trial after stating at the preliminary hearing that he could not identify him. The Illinois Supreme Court held that the trial judge should have allowed the defendant\u2019s motion for a continuance on the grounds of surprise in order to procure witnesses to explain what occurred at the preliminary hearing.\nWe believe that, as in Kuczynski, defense counsel was surprised by Nitz\u2019s testimony. The record demonstrates that defense counsel did not learn of the witness until his testimony was offered. In light of the admissions attributed to defendant by this testimony, we cannot say that defendant was not prejudiced by the denial of his motion.\nThe People argue that \u201cNitz was called as a rebuttal witness to impeach the credibility of the defendant,\u201d and that, in substance, \u201cdefense counsel was asking for time to impeach the testimony of an impeachment witness.\u201d While Nitz\u2019s testimony might partake of the character of impeachment evidence, it was also an admission of guilt and could therefore have been introduced in the State\u2019s case in chief.\nThe People\u2019s contention overlooks the principle which requires that the accused in a criminal case be permitted to introduce evidence in surrebuttal, where the prosecution in rebuttal is permitted to introduce new matter, (People v. White, 14 Ill.App.3d 1079, 303 N.E.2d 36.) The trial judge would have been required to admit surrebuttal evidence, the purpose of which was to refute the testimony of Nitz, since such evidence would have been irrelevant and immaterial, and could therefore not have been presented, in the defendant\u2019s case in chief.\nThe denial of the motion for a continuance unduly restricted the defendant of the opportunity to present surrebuttal testimony in respect to a matter which was crucial to the issue of guilt. Under these circumstances, we conclude that the trial court did abuse its discretion in denying defendant a continuance.\nWe find particularly appropriate the following statement from People v. Blumenfeld, 330 Ill. 474, 489, 161 N.E. 857, in which the Illinois Supreme Court considered a denial of a motion for a continuance:\n\u201cWhile it is highly important that justice should be speedily meted out and that criminals should be punished with celerity and dispatch, it is much more important that before punishment should be inflicted upon a person accused of crime full opportunity should be given to place the court in possession of all the facts bearing upon the question of the guilt or innocence of the accused, so that the court and juiy may ascertain the truth as to whether or not the person accused is, in fact, guilty of the crime.\u201d\nFor the foregoing reasons, the judgment of the circuit court of Rock Island County is reversed and the cause remanded for a new trial.\nReversed and remanded.\nBARRY, J., concurs.", "type": "majority", "author": "Mr. JUSTICE STOUDER" }, { "text": "Mr. JUSTICE ALLOY,\ndissenting:\nI agree with the majority opinion in what is said as to all issues except the issue of determining whether the trial court exercised sound discretion in denying defendant\u2019s motion for continuance for the purpose of finding surrebuttal witnesses. As noted in the majority opinion, nowhere in the post-trial motion is there an issue raised concerning the propriety of the action of the court in denying defendant\u2019s motion for continuance. It should also be emphasized that the continuance involved here raises the question of whether or not to grant a continuance during the course of a trial. The action of the trial court in denying a continuance under such conditions should not be disturbed on review unless there is a manifest abuse of discretion. (People v. Kees (1965), 32 Ill.2d 299, 205 N.E. 2d 729.) From the record it appears that after the testimony of witness Nitz, defendant requested a continuance for the purpose of finding out who was present when the admission was made, according to the testimony by Nitz. The trial court did not deny the defendant the opportunity to introduce evidence to refute the testimony by Nitz. The defendant himself testified and denied the statement made by Nitz as to admission of guilt. The court was, therefore, confronted with a motion for a continuance in the midst of a trial for the purpose of finding surrebuttal witnesses who might impeach a rebuttal witness. The affidavits as to other possible witnesses which were secured were secured several days after the trial, and were not presented when the motion was made.\nTo find that there was an abuse of discretion by the trial judge where a motion for continuance is made under such circumstances and where the evidence of guilt on part of defendant did not depend wholly on the testimony of Nitz, I believe, was not proper on review. Accordingly, I believe that there was no abuse of discretion on the part of the trial judge in denying the motion for continuance and that the judgment of the Circuit Court of Rock Island County should be affirmed.", "type": "dissent", "author": "Mr. JUSTICE ALLOY," } ], "attorneys": [ "Robert Agostinelli and James Geis, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "David DeDoncker, State\u2019s Attorney, of Rock Island (Bernard Rivkin and James Hinterlong, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Lee Lott, Defendant-Appellant.\n(No. 74-53;\nThird District\nNovember 28, 1975.\nALLOY, J., dissenting.\nRobert Agostinelli and James Geis, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nDavid DeDoncker, State\u2019s Attorney, of Rock Island (Bernard Rivkin and James Hinterlong, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0779-01", "first_page_order": 807, "last_page_order": 817 }