*1 ILLINOIS, Plaintiff-Appellee, v. THE OF THE STATE OF PEOPLE ZEHR, Defendant-Appellant. KENNETH No. Third District 81-552 10, 1982. Opinion filed November HEIPLE, J., dissenting. Carusona, De- Appellate both of State Agostinelli
Robert and Peter A. Office, Ottawa, of for appellant. fender’s Terry (John Breslin and Peterlin, Attorney, of X.
Gary State’s Ottawa L. Commission, of coun- Mertel, Appellate Attorneys Service A. State’s both People. sel), for the of the court: the opinion delivered
JUSTICE STOUDER invasion, bur- for home Zehr indicted Kenneth was Defendant charge dis- the theft theft. After battery, and glary, aggravated La court of in the circuit missed, proceeded and received the offenses was convicted Salle Defendant County. De- 22, 6, years and SVa concurrent sentences respective, of Corrections. partment evening began convictions leading
The incident victim, living Fox, 68-year-old Hazel 27, 1980. of October to her According a week earlier. her husband as she had lost alone came to and a companion defendant deposition, audio-visual for sale. Speaking an old car that was to examine wanting her home the vehi- window, refused to show them room she through dining toward driveway down her The men then left and walked cle. then watched television or hear vehicle. She road. Fox did not see *2 fell asleep. and her downstairs to base- up 11 she woke and went p.m.,
Around basement, rustling Fox heard the the furnace. In ment to check from the fur- bathroom, was a few feet curtain in the which a shower pausing in After doorway. the bathroom persons appeared nace. Two off, ren- glasses the witness’ moment, one of the knocked persons in bound, and gagged, kept She was then virtually blind. dering time, the ran- that attackers During for several hours. basement to strike to the several times sacked her home and returned basement away, eventually their Fox later heard a truck start and drive victim. and called her cousin. Several loose, pair glasses, found an old got home, later items, from her were missing which the witness said were presented, in Much additional evidence was possession. is not we shall questioned, as the of the evidence sufficiency but for the of the issues herein. necessary consider that resolution for our is whether the trial court presented The first issue review by in to be recorded an audio allowing testimony erred victim’s 206(e) (87 206(e)) pro Rule Ill. 2d. R. Supreme visual device. Court taken or stenographically vides in shall be part “[t]he device, of the by sound-recording upon agreement parties, and shown, taken audio-visual good may order of the court for be of the agreement parties, As there was no recording device.” for the audio-visual “good deposi whether cause” question becomes 206(e) (87 It noted Court Rule Ill. tion was shown. should be a rule of not criminal al 206(e)) procedure, procedure, 2d R. civil terms are into the criminal though general incorporated procedure its At time 414(b)). Court Rule Ill. 2d R. Su by Supreme 414(b) audio-visual permit Rule amended in 1975 to preme 206(e)) Court comments or the authors offered no recording depositions, of evidence it in since special importance advice about the amendment. This is in manner effort to the amendment dicates there was no fashion proceedings. in criminal significance that would have the im cause shown” was “good The State contends that remind us the witness’ demeanor and jury observing of the portance cen- noted the specifically The trial court century. that this is the 20th 460
tury videotape and the fact would show Fox’ demeanor. We quar- rel not with the chronometric reminder observation regarding and de- meanor; however, legislature we do not believe the intended either to constitute “good present Assuming cause” in context. the 20th century suggests recording reminder technology available be uti- lized, “agreement parties” “good of the and cause shown” limita- tions As rejection suggestion. cause a to the observation re- demeanor, garding this a factor will always almost be present. the observation of witness’ demeanor were constitute “good cause,” then such be in present every case. virtually We therefore “good find no cause shown” the use of the videotape and constitute reversible error.
We note parenthetically legislative limitations are not without reason. were not Historically, depositions admissible in criminal cases. Malone 41 3d 354 now, N.E.2d Even permitting the circumstances the use of depositions against an accused a criminal case must extraordi (see nary Depositions 23 Am. Jur. 2d 120 Discovery (1965); sec. (1979) Fed. A.L.R. circumstances” under (“exceptional 3503), allowing depositions U.S.C.S. sec. and statutes such are strictly (see Jur. Depositions Discovery construed 23 Am. sec. 11 (1965)). Videotaped depositions, testimony, present televised ad *3 ditional problems. Not run the risk of they prejudicing do ac cused by overemphasizing the witness’ the formal court testimony, setting impact performance has an on witness in that it creates psy chological present when compulsions, may is courtroom, taken outside the toward and testifying accurately com (see Burt, 80 1212 pletely (1977), A.L.R.3d citing Case Against TV, 1976)). Courtroom 12 Trial 62 It Magazine (July has also said been demeanor a witness comes across differently (See over television than when witness is in the a courtroom. Kansas 336, City (Mo. v. McCoy 1975), (dissenting opinion).) 525 S.W.2d 340 All of these of the legislative factors limitations statute support here involved. trial,
As this cause for a we must be remanded new shall ad dress likely again. two additional issues to arise The first is whether the trial court abused its discretion to ask by failing prospective ju rors the following provided defense coun supplemental questions sel: at
“1. If of all the after you close evidence and have arguments heard State of counsel has you believe sustain to proof prove failed to the burden of and has failed
461 doubt, you a reasonable would have guilty beyond defendant hesitation whatsoever in a verdict of Not any returning Guilty? defendant, Zehr,
2. Mr. decides not to in his behalf, against him? you own hold it Do you 3. understand that defendant is inno- presumed behalf, cent and does not have to offer in his own any evidence beyond but must be a doubt proven guilty reasonable State?”
Each of questions goes to the heart of a particular preju bias dice which would of his to a fair deprive right impartial defendant of a is jury. scope ordinarily While voir dire examination left to court, discretion of the sound counsel should be to permitted make search pertinent reasonable to ascertain whether jurors minds of the are free from bias and prejudice. (People v. Car penter 470, (1958), 100, 13 Ill. 2d N.E.2d cert. (1958), 150 denied 358 887, U.S. 115, 3 L. Ed. 79 2d S. Ct. While Court Rule 234 2d proscribes Ill. R. 234) questioning jurors concerning mat instructions, ters of law we do not so perceive supplemental questions concerning such, rather directly but see them as probing for prejudice. bias and We note further that if prejudice such bias or is present, hardly (See instruction is v. People curative. Newlun , 938, (1980) 940-41, 1055, 89 Ill. 3d App. (concurring N.E.2d opinion), denied 83 Ill. 2d appeal (1981), 573.) We therefore find the failure of the questions court to submit the to the abuse jury an discretion and direct it to include the in its exami questions voir dire see, nation if they again People are tendered. But v. Lowe e.g., 49, 54, 639, 30 Ill. 3d App. 331 N.E .2d 642.
The second arise likely again additional issue whether the trial erred in denying request court for an absence of instruction, Instructions, Civil, witness Illinois Jury Pattern No. 5.01 (2d Garrett, 1971). ed. The witness in the code question Terry fendant. It well established that the State is not to call all required crime v. witnesses its case Nowak proving 158, 313), Ill. 2d (1970), 45 258 N.E. and where a similar instruction refused, tendered and no error was found (People Bracey , It (1981) 417 N.E.2d further 1029). appears Garrett was known and to both the State. available defendant and *4 The court therefore did not err in the instruction. refusing
Accordingly, the of the circuit court of La Salle judgment County trial, and this cause for a with directions. reversed remanded new Reversed remanded with directions. J.,
SCOTT, concurs. HEIPLE, dissenting:
JUSTICE that the trial agree judge not the conclusion majority’s I do with I videotaped testimony, nor do believe admitting erred in the victim’s the defendant’s by refusing proposed that he abused his discretion questions. voir dire Fox, case Hazel a woman with 68-year-old
The victim in this was a and arteriosclerosis. trial court ordered history hypertension of taken since the condi testimony that evidence of her be deposition an the that her probability her health raised substantial tion of 414(a) (87 Rule (Supreme at trial. Court would be unavailable that an evidence in 414(a)).) provides deposition R. This rule also Rule trial taken in accord with Court criminal shall be that a 206) provides deposition may videotaped Ill. 2d R. be good order of court for cause The State that it argued shown. The trial Fox’ demeanor. jury for the to observe Mrs. important trial, At deposition videotaped. ordered that the judge agreed and not improved Mrs. Fox’ condition had expert medical testified that Hence, the in trial testify person. and that she would not be to able objection videotaped court admitted the evidence over deposition of defense counsel. court, challenge does majority
In the trial reversing Rather, they in this deposition of an evidence case. appropriateness using to cause for video- good feel that State failed demonstrate good cause was a matter left to taped testimony. Whether was shown in the discretion of the trial and he did not abuse that discretion judge that the need for the agree majority this case. While I would with in good every to observe a witness’ demeanor would not be cause jury case, that it the circumstances of I do believe was sufficient under this case. the demeanor of com- certainly encompass
Good
must
who can
plaining
witness when
witness
individual
Clearly
of the crime.
the defendant
identify
perpetrator
did
in
finding
particular
not err
the demeanor
this
judge
determining
to
in
the defendant’s
jury
witness was
important
preferred
Even
would have
guilt or innocence.
the defense counsel
to her de-
person
specifically
Mrs. Fox
referred
arguments. In
during closing
importance
meanor
view
the next
deposition
thing
best
testimony, videotaped
It enabled the
better assess
Fox’
at trial.
presence
Mrs.
of a
reading
deposition
witness than
credibility
key
this
*5
However,
have.
argued
showing
defense counsel
jury
tended to
Mrs. Fox’
The
videotape
overemphasize
testimony.
majority
defense,
agrees with the
that a
an accu
adding
videotape may
rate reflection of the witness’
It is my position
true demeanor.
are not
in all
testi
alleged problems
videotaped
inherent flaws
but are factors
court
mony
should consider on
case-
by-case
in deciding
basis
whether or not to use that method of record
ing.
The use videotaped evidence depositions encouraged should be where good cause is shown. The majority opinion places an undue re- striction on the trial judge’s cause, discretion in determining good therefore, I dissent.
I also do not think that the trial judge abused his discretion in refusing to give following supplemental voir dire questions ten- dered by defense counsel:
“1. at the close of all the evidence and after you have arguments heard of counsel you believe that the State has failed to sustain the burden of proof has failed to prove defendant guilty beyond doubt, a reasonable you would have any hesitation whatsoever in returning a verdict of Not Guilty? defendant,
2. If the Zehr, Mr. decides not to his behalf, own you hold it against him?
3. Do you understand that the defendant is presumed inno- cent and does not have to offer any behalf, evidence in his own but must be proven guilty beyond a reasonable by doubt State?”
Supreme Court Rule 234 (73 Ill. R. 234) clearly exami forbids nation of jurors, directly or indirectly, concerning matters of law or instructions:
“The court shall conduct the voir dire examination of pro- spective jurors by putting to them it questions thinks appropri- ate touching their qualifications to serve jurors in the case on trial. The court may permit parties to submit additional questions to it for further if inquiry it thinks they are appropri- ate, or may permit the parties supplement the examination such by direct inquiry as the court Questions deems proper. shall not directly indirectly concern matters of law or in- structions.”
Although the majority may correctly perceive proposed questions as probing for bias and prejudice, the also questions have the indirect effect of examining jurors concerning matters of law and instruc- tions. agreed parties concerning statement voir dire examination
indicates that the were asked if follow jurors they would the instructions of law the court even given by though they with might personally disagree the instructions. The offered the defense were questions incorpo then rated into the the court. pattern jury given by instructions This procedure questions while adequately encompassed proposed remaining within To questions the bounds Rule 234. allow the defense to submit on voir is to jury dire which amount to instructions indoctrinate and pre-educate Phil concerning People matters of law and that is forbidden. jurors 3d 362. lips appellant
I also note that the does not claim that selected was biased unfair: “Where voir dire examination—whether conducted *6 or by qualified impartial the court counsel—results in a no jury, preju in its 18 Ill. dicial error occurs selection.” v. Carruthers reasons, I judgment For would affirm court. BURROUGHS, Petitioner-Appellant, v. TAZEWELL COUNTY ROBERT Foundation, COLLECTOR, Medical Re Respondent-Appellee. (Hopedale — FOUNDATION, MEDICAL Plaintiff spondent-Appellee.) — HOPEDALE COLLECTOR, Defendant- COUNTY Respondent-Appellee, v. TAZEWELL Petitioner.) (Robert Burroughs, Intervening Petitioner. — 81—640, cons. — 6 39 Third District Nos. 81 15, 1982. Opinion November filed