*1 Cole, Stuart Illinois, Plaintiff-Appellee, of the State Defendant-Appellant. Kol, Stuart a/k/a (No.
Fourth District June 30,1971. denied Rehearing July TRAPP, dissenting. J., Weiner,
Robert of Springfield, appellant. Hollis, Steig- Richard A. (Robert State’s Attorney, Springfield, J. Frandsen, mann and Richard Attorneys, counsel,) A. Assistant State’s *2 for the People.
Mr. SCHOLZ of the court: delivered JUSTICE The defendant from his in a appeals conviction murder A sentence of fifty seventy-five to years imposed. brief,
In his be con- the defendant asserts to eight areas review sidered first, the this court. We need discuss two of these only issues— impartiality second, decision, because of our jury, of search and seizure.
In the court of his examination, the voir dire exhausted the defendant peremptory Russell a challenges. thereto Subsequent juror, prospective Davis, was lifelong examined as a a one of Davis was four. panel resident of Sangamon court- County, whose wife was in the employed house as a Review; of the Board as deputy whose son was employed civil for the State of Illinois in who engineer Department; the Highway media; had heard about the case the news who had known through had State’s and his assistant for a number of who worked Attorney years; for the in his State’s State’s who was witness for the Attorney campaign; in a case in which ac- Attorney he was who was privately employed; with one of tire decedents and had with him on the quainted conversed had who lived next door to a doctor who was a material wit- telephone; ness and who also had for family been the doctor a number juror’s who he had known the State’s years; “way indicated assistant Attorney back”; witness; son was whose married to a sister of a who youngest witness; acquainted another who was with Edward personally related to witness, sheriff of the who had county; a material served Ryan, had Ryan; who discussed this case with campaign as treasurer awas man with well-acquainted Springfield, and who obviously Ryan; and its environs, “happenings”. its citizens its examination, voir dire Davis, his indicated concern throughout Mr. service, evidenced certain of his answers: as about Davis, in Court that response question by you Mr. would “Q. had might this we have as when relationship you not testified permit this not hearing, at a interfere with as a duties prior your witness as a fair and impartial if would render juror you you are selected case, in verdict is that correct? human, to,
A. I’m I only but would attempt yes.
# # # And if Q. you Davis, you chosen as a I’m sure that were Mr. juror, would set aside had any have with might acquaintanceship you me or Mr. Hollis in in this case? deliberating that, A. I could do but I just would think.” wonder what public
# # e Before examining Davis, panel containing juror attorney for the defendant to attempted have Davis excused cause. After hearing chambers, the court denied the for cause and stated: “You the Court in a put position here that man has made all the tests that is law if this Court prescribed by were dismiss juror for for cause it would indicating that the Court would be not what he said here.” accepting After the challenge, defendant, court denied the the attorney for the exhausted, aware that his were peremptory challenges attempted pres- himself and the sent defendant favorably of not possible eyes Davis, but only the venire as well.
This trial tactic is not a waiver of the defendant’s object *3 as jury selected. 1870, Section 9 Art. II of the Constitution of Stat. Ill. Rev. (1969), guarantees: all criminal the accused prosecutions “In shall have the right to
* * * a trial public by speedy county or is alleged in which the offense to have been district committed.” 497; 495, v. Cravens 375 Ill. 31 People (1941), 938, 939, In N.E.2d said: Court the Supreme has often been stated court that great
“It care should be exercised to that constitutional to a preserve right defendant, be he to be guilty juror, qualified, innocent. must come into the trial of a mind uncommitted on the question the case with of guilt or innocence of the defendant prepared weigh the evidence impartially #» # # on
The court went
to say:
a cardinal rule
“It was
at common law that jurors, to be qualified should stand indifferent
impartial,
between the parties and be wholly
* *
free from
the suspicion
497;
even
of bias
At
1044 twelve im determined controversy case the the facts in have denied, cert. 741, Ward, v. jurors. People 204 32 Ill.2d N.E.2d partial Kolep People 1947, 1026 384 86 (1966); U.S. (1963), 29 Ill.2d 193 N.E.2d
Our Court has said: Supreme voir dire is, in a typical
“The examination of
on
prospective jurors
means
instance
valuable
pretrial publicity,
most
probably
summoned
among
or indifference
ascertaining partiality
persons
817,
103, 108;
People Kurtz
jurors.”
224 N.E.2d
37 Ill.2d
(1967),
208, 211.
People
v. Gendron
41 Ill.2d
(1969),
®
3 If a
determination
juror meets the
statutory qualifications,
the sound
whether
for cause should be
rests within
allowed
court,
unless
discretion of the trial
and his
will not be disturbed
ruling
v. Harris
he has
38 Ill.2d
People
clearly abused his
(1968),
discretion.
552;
People
v. Cesarz
44 Ill.2d
(1970),
are two cases in which the court
the basic rules as stated herein
followed
then
not there
gave individual attention to the case as to whether or
In the Ward
case,
abuse
which
court called a
discretion.
that
“serious objection”
found,
was the fact that one of
after
the jurors
the trial of the
to be a
The court found
special deputy sheriff.
awas
courtesy
without
without
appointment
compensation
conclusion,
individual functioning as a
said:
the court
deputy.
“On careful consideration
think
of this
we
individual
presence
on the jury was not sufficiently
to warrant reversal.”
prejudicial
Ward,
at
32 Ill.2d
1045
excellent
the require-
discussion of
and
background
juries
the historical
ments of
all
Court of New
examined
impartiality.
Supreme
Jersey
of the
detail
and to
in
authority available
the States
throughout
quote
from their
did,
how-
opinion
They
unduly prolong
opinion.
ever,
from
quote
Cir.
Judge
Chapman
Murrah in United States v.
(10
417, 421,
said:
is said that
1946), 158 F.2d
in
Murrah
“It
which Judge
can,
as a
when a
he
and the court finds
juror testifies that
believes he
will,
selected,
matter of fact that he
if
render an
verdict on
impartial
the evidence,
is an
[Citing
he
the law.
impartial juror
required by
juror’s
answer
his
mind is
questions touching
state of
primary
case.]
evidence
one
competency,
judicial
but
ultimate
is
question
decide,
doubt,
the court to
and in
demands that
justice
case
* *
be
court
[Citing
allowed.
The New
Jersey
cases.]
*
“* *
Court,
also
if
quoted from the Florida
which said:
Supreme
is
there
as to the
juror’s
integrity,’
sense of fairness or his mental
he
committed,
should be excused and that
error
it be in
be
let
'[i]f
favor of the absolute
impartiality
purity
jurors’.” (Johnson
591;
793,
97
121 So.
In conclusion the New
Reynolds (1929),
796.)
Fla.
“We,
course,
recognize
court said:
court is vested
Jersey
qualifications
with broad
in
discetionary
determining
powers
jurors
and that its exercise of discretion will
not
ordinarily
be disturbed on
Jackson, 11
appeal. [Citing
State v.
A.L.R.3d at 850—851.
cases.]”
court,
24;
This
v. Tillman
People
116
(4th
1969),
Dist.
Ill.App.2d
253
recognized
N.E.2d
the law stated
further
established
be
that each case should
determined on its individual merits.
court reviewed
413
Kirkpatrick
Ill.
110
(1953),
v. Ortiz
320
150
N.E.
(1926),
Ill.
Gold,
denied,
Ill.2d
232
cert.
392
S.Ct.
Harris,
We should a only be he should impartial but be appear from aU objective criteria in order that be justice The juror done. should have to him certain propounded questions answers to questions those be should elicited from Those him. answers and his subjective criteria should not control his acceptance rejection under a court chaUenge but should only serve of the criteria on which the portion discretion of the court should *5 1046 challenge of a or denial the decision as to allowance The ultimate
based. and of the not that the trial is at for cause that of judge presiding juror. satisfy appearance must Offutt,
To paraphrase impartiality impartiality. controlling, the necessarily case, item single
In while no is sheriff, witnesses with prosecutors, of Davis’ relationship cumulative effect for cause. of the and others allowance required law, our required by is that impartiality Davis have may possessed having bearing relationships, acquaintanceships but for person extraordinary be an Davis, he have and as was to being as involved trial by to all law in insuring man. We believe that the permits, do not allowed encumbered be an of their that thus peers, impartial jury objection. to serve over valid to that was error
Having concluded
it
deny
error can be
we now
to consider the
of whether
turn
therefore,
convic-
harmless,
a reversal of the
deemed
and
not requiring
(1967),
v.
Chapman
tion and remandment for a new
In
California
987;
denied,
18;
1283;
87
386 U.S.
386 U.S.
L.Ed.2d
reh.
87 S.Ct.
18
824;
Court fashioned
S.Ct.
the United States Supreme
relates to State-
rules with reference to the
of harmless error
it
doctrine
refer-
court
At
and
proceedings.
repeated
issue there was
continuous
to
testify.
ences
to the defendant’s failure
prosecutor
noted certain areas
Stewart
concurring opinion, Mr. Justice
not to be con
wherein violation of
were
protected rights
constitutionally
Thus,
at
sidered as harmless.
an
introduced
trial
confession
involuntary
harmless
cannot be considered as
error.
v. Illinois
372
(1963),
(Lynumn
528;
83
9
true even if the confession
922.)
S.Ct.
L.Ed.2d
Such is
U.S.
is
unnecessary
Washington
completely
(Haynes
conviction.
10
(1963),
L.Ed.2d
524.)
518 —
523 —
right
has
described as “too fundamental and absolute
to counsel
been
to allow
of pre
courts to
nice calculations as to the amount
indulge
States,
60, 76;
judice
from its denial.”
u. United
arising
(Glosser
Other illustrations given
86 L.Ed.
702.)
by Mr. Justice
Stewart
community
relate to cases where a
is tried in a
defendant
defendant,
has been
adverse to the
exposed
publicity highly
where
is
jury
instructed in an unconstitutional
or where the
presumption,
trial
is
on
judge’s remuneration
based
a scheme
him a
giving
financial
Likewise,
interest in the
is
outright
result.
reversal
without
required
refer
to a
prejudice
ence
where the selection
showing
grand
turns on
petit jurors
any showing
Thus,
to the defendant.
prejudice
harmless,
while error
is clearly
can
it
established in
Chapman
constitutional
fundamental
it,
basic and
many
referring
cases
error.
be eroded
harmless
not to
protections
orderly
innocent,
fair,
to a
defendant,
is entitled
whether guilty
system
Under our
with our laws.
trial in accordance
impartial
for a guilty person,
form of trial
there
not one
jurisprudence,
411; 140
Kalpak,
different form an innocent person.
People Galloway,
Stanko,
was error for cause to denying of Circuit reverse this conviction and remand Court this case Sangamon for new County retrial, arise,
Upon it is that certain issues will evidentiary again clear and it that is considered in connection with this appropriate these appeal. items
Certain of evidence seized at the time were of the defendant’s arrest and The court subsequent thereto. trial overruled the motion to 28, items 1967, on suppress evidence taken on basis April that evidence seized was incident to lawful arrest and inwas view”. “open The court sustained the motion to it suppress to items taken pertained 29, as evidence on A careful April 1967. examination of this case indicates to only regard search seizure that should be considered by to remand prior Court is the seizure of certain items on 28, April Court,
The to pursuant error, our discussion of previous harmless has concluded that the admission into evidence of those items seized on 28, 1967, April was not reversible error but harmless merely In error. remand, light we direct our attention to this question only because court, necessity affording to the retrial, on our direction. has Court not considered the case of Chimel California, v. 395 U.S. 2034, 23 L.Ed.2d because of holding by the Supreme Court United States States, in Williams United 39, 4368, v. L.W. 23, 1969, Chimel decided on to be given retroactive June effect. In considering admissibility of the items 1967, seized on April 28, the Court has considered States Rabinowitz, v. 339 U.S. States, L.Ed. 653 v. Harris United but has concluded that even after standards established by
those are cases the search on applied, 1967, April the resultant seizure were not lawful. has said: repeatedly Court of Illinois Supreme the officer situation that confronted issue is whether the
“The critical justified the search.” Watkins, Burnett, People 546 and 170 N.E.2d Ill.2d
19 Ill.2d
A similar situation Kalpak, existed in where the court said at 735: page “This home, absence, search of in his a search without Johnson’s warrant, consent, and without his and in violation of clearly illegal his rights, guaranteed the fourth amendment to the United States and section 6 of Illinois, article II of the constitution of S.H.A. [Cases evidence, The admission in over of the articles thus objection, cited.] seized, violated said defendant’s rights guaranteed by the fifth amend- *7 ment to the United States constitution and section 10 of article II of the Illinois constitution. motion to suppress [Case cited.] Johnson’s should have been allowed. Review the authorities on this unnecessary.”
In the retrial of this cause those items of evidence seized on April 28,1967, should be suppressed.
For the reasons assigned, the cause is a reversed and remanded for new Reversed and remanded.
CRAVEN, concurs. P. J., dissenting: TRAPP
Mr. JUSTICE of the record it might a strict review be said that Upon there was a cause to the juror, of defendant’s waiver It seems Davis. however, to review issues upon more the the facts of appropriate, record. to deny error it was reversible determining acquaint- factors of effect” to the “cumulative turns opinion compel- considered factor was no although single ance and relationship, remote factors were many out It seems fair ling. point in time and place. Hornstein, was victim, awith note that the conversation telephone
We table advertised of a concerning purchase pool Davis’ inquiry offense, time of the to tile year former. Such occurred prior size the table. matter was when Davis learned dropped who testi- awith physician There is reference to an acquaintanceship since twenty was some years fied at the that it trial. The record shows had physician- or enjoyed and Davis had been physician neighbors, controversy fact, challenge or was, in no patient relationship. There medical concerning testimony. Hurrelbrink, witness, influence with the potential affinity had seen such
seems
in the
that Davis
not
meaningless
the record
light
a few miles
witness in three or four
had lived but
although they
years,
in the court
The voir dire shows that Davis’ wife was
apart.
employed
defendant’s
house with the Board of
also shows that
Review.
record
her,
counsel
he
her services for
sought
with
and that
friendly
influ-
transaction of his
no basis for
business
that office. We perceive
Highway
ence in the fact that
of the State
Davis’ son was
employee
Wood,
Department. United States v.
The role of the as a nil as Ryan, virtually witness presented in the arrest and abstract defendant. He was at the time of present testified as to the of a find in his posting guard, nothing testimony but we Thus, as to matters of has a distinction controversy. case substantial Jackson, from the cited State v. 203 A.2d A.L.R.3d 841. N.J. detective, In that case the challenged juror was a close friend of police and it that the case appears turned a stem attack the credi- upon upon bility of the Such detective. factor is not here. present examination, abstract of voir dire complete evaluation in the discloses frank and consci- quoted opinion, including portion counsel, of the court and serious questions entious response of a juror. may realization of the While responsibilities summary seems fair to that Davis answered that he had no say it challenged, innocence, as to that he would the witnesses guilt subject he to the same standards of he credibility whom knew those whom know, did that he suffer no embarrassment in returning verdict which be adverse to the State’s whom he knew. might Attorney item, latter he that he As to the out would have five with pointed *8 conscience. In the context of the abstract it seems fair to that Davis say “* * # counsel, of defense affirmatively question
responded in as are now you of mind you in same frame accept juror the form in this case?” not imply approval we (By quotation do of question.) that a
Our shall be a for cause statute that it provides an juror has or that he has formed read news account of a crime account, if such or a news impression based rumor opinion upon shall, oath, render a juror fairly impartially state he can upon * * evidence, in verdict accordance and the with the law court shall par. be satisfied of truth of statement”. (Ch. Ill. Stat. 1967.) Rev. This standard of measure meets the requirements Dowd, in Irvin as process due developed Gendron, See 41 Ill.2d N.E.2d 208. Cesarz, majority in opinion Harris, opinion in controlling on this The latter case dealt with business juror’s issue. association and social attorney, with the acquaintanceship prosecuting while the former dealt with with witnesses and the the acquaintanceship family the decedent. pres- In each case test the court was ence or absence of an guilt, could juror apply whether same test credibility to the known as to those who were witnesses unknown, and whether the would suffer in returning embarrassment a verdict against counsel known to him. this last Davis Upon volunteered the in statement of his consideration of his return- conscience Harris, Here, ing verdict. Davis indicated he would consider a juror having his then frame mind be fair and in the trial of a he, case in which was a juror, party. a careful voir
The trial dire judge conducted and we have observed no limitation the interrogation of the upon juror by During counsel. considerable of time the trial had an period judge opportunity observe Davis he made his answers to the The record shows that questions. there was meticulous care in the standards of applying qualification which have been discussed. The for cause was presented con- sidered outside of presence at a when jurors time four remained be accepted, so that there was no focus direct upon juror. I cannot agree that there abuse of discretion where the trial court has, fact, rules applied established the statute and case law.