APPEAL from the Circuit Court of Peoria County; the Hon.
HERBERT C. PASCHEN, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
On July 13, 1966, eight young women were murdered in their townhouse residence in the city of Chicago. The grand jury of the circuit court of Cook County returned eight separate indictments charging the defendant, Richard Franklin Speck, with the murders. The defendant moved for a change of place of trial from Cook County and the motion was allowed and the cause transferred to Peoria County. The indictments were consolidated for trial before a jury which returned a verdict of guilty on all indictments and fixed the death penalty. The court sentenced the defendant to death and the cause is now before us on appeal.
Following the transfer of the cause the defendant moved for another change of the place of trial on the ground that he could not receive a fair trial in Peoria County because of prejudice against him on the part of the inhabitants of the county. The court denied the motion and the defendant contends that the denial was reversible error.
The record is replete with exhibits consisting of allegedly prejudicial newspaper articles and records of television and radio commentaries on the case. Because of the violence of the crimes and the number of victims the slayings received wide publicity on a nation-wide scale for a period of about two weeks commencing with the date of the crime and continuing through the arrest and indictment of the defendant. These news stories were circulated to news media throughout the nation, including Peoria, by means of the Associated Press and United Press International wire services. Although the exhibits submitted by the defendant in support of his motion contain numerous copies of alleged prejudicial publicity in newspapers published in Chicago, and radio and television programs originating in Chicago, we do not believe that these exhibits are of substantial assistance in determining whether the defendant received a fair trial in Peoria. Although the statistics submitted by the State and the defendant differ, it is clear that the Chicago newspapers were not widely circulated in Peoria County. The figure submitted by the State indicated that 93% of Peoria County households did not receive any edition of any Chicago newspaper; that most Chicago newspapers reached less than 5% of these households and that only the Sunday edition of the Chicago Tribune was received by as many as 7%. Defendant did not directly contradict these facts but contended that they were based upon subscriptions and did not include news-stand sales. In any event, the heavy news coverage of the crimes in the Chicago newspapers in the period immediately following the crimes was, to a large extent, repeated in the Peoria press.
Although it is possible for residents of Peoria County to receive Chicago radio and television broadcasts, Peoria County was served by five local radio stations and three local television stations. We are of the opinion that only the broadcasts of the local stations are relevant in determining the question of alleged prejudicial publicity.
The principal newspaper in Peoria County is the Peoria Journal Star, which reached approximately 80% of the readers in the Peoria metropolitan area. The crimes received front page attention for about a week. The stories contained: the injuries inflicted on each of the women; an account of the slayings related by the sole survivor; a police sketch of the slayer; an article stating that Speck had been named as the killer; an account of his arrest; a summary of the defendant's previous criminal record; a report that the defendant had suffered a heart attack while in custody; a report that indictments had been returned against the defendant; a report that the defendant's fingerprints had been found in the townhouse where the women were slain; a report that the sole survivor had identified the defendant; and a report that the defendant would claim insanity.
The radio and television broadcasting during the period was much in the same vein. In addition to the news articles referred to in connection with the discussion of newspaper publicity, there was one television broadcast which is particularly relied upon by the defendant in support of his claim. On July 16, before the arrest of the defendant, the then police superintendent of the city of Chicago appeared in a television interview where he displayed a picture of the defendant and stated that the defendant had been identified as the slayer by the survivor and also by fingerprints found at the scene of the crime. He urged all citizens to report to the authorities any person who appeared to match the defendant's description. The superintendent stated that as far as he was concerned, there was no question that the suspect was the murderer. The defense also contended that in a television broadcast in December 1966, long after the defendant had been apprehended, the superintendent justified his former statement and stated that he did not think that his remarks prejudiced the defendant's right to a fair trial. However, the evidence at the hearing on the motion for a further change of the place of trial, failed to show that this interview was broadcast over any Peoria station and the court sustained an objection to its admission.
In determining whether the defendant received a trial before a fair and impartial jury, we must bear in mind that defendant had to be tried in some community in the State of Illinois. In determining the place of trial the court had to consider the necessity of selecting a community which was capable of affording adequate security for the defendant and a county in which there would be a sufficiently large number of prospective jurors. All communities in this State meeting these requirements were served by one or more wire services transmitting news to local newspapers, and were also served by local radio and television stations. Any such community would therefore necessarily have been subjected to much the same publicity to which Peoria County was subjected. The basic consideration, however, is not the amount of publicity in a particular case, but whether the defendant in that case received a fair and impartial trial, for, as stated in Beck v. Washington, 369 U.S. 541, 556, 8 L.Ed.2d 98, 82 S.Ct. 955, where a change of venue on the ground of prejudicial publicity was denied: "Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury." The Supreme Court in Irvin v. Dowd, 366 U.S. 717, 722, 6 L.Ed.2d 751, 81 S.Ct. 1639, laid down the following standards to be used in determining whether a defendant received a trial before a fair and impartial jury: "It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."
Applying these standards, we focus our inquiry on the ultimate question of whether the jurors at the defendant's trial demonstrated that they were able to lay aside any impression or opinion which they might have had and render a verdict based on the evidence rendered in court. By agreement, the defendant was given 160 peremptory challenges. Less than half of the peremptory challenges had been exercised by the defendant at the time the final jury panel was selected. There is some dispute between the State and the defendant as to the exact number of prospective jurors who were refused because of a preconceived belief in the defendant's guilt, but it is undisputed that the number of such propective jurors was between 250 and 300. Defendant argues that the fact that so many jurors were excused for cause demonstrates that the degree of prejudice in the county was so great that defendant could not receive a fair trial. On the contrary, we are of the opinion that the large number of excused jurors rather tended to demonstrate the care which the court exercised in assuring that the defendant had a fair and impartial jury. (Cf. People v. Berry, 37 Ill.2d 329, 332.) The 12 jurors finally selected had stated that they had no such preconceived notions of the defendant's guilt which would prevent their rendering a fair and impartial verdict, although all of them stated that they had read something about the case. The defendant accepted all of these jurors and did not challenge any of them for cause.
The situation is far different from that in Irvin v. Dowd. In that case the defendant exhausted his peremptory challenges and 8 of the 12 jurors finally selected stated that they had preconceived notions of guilt. One of the final jurors said that he could not give the defendant the benefit of the presumption that he was innocent and others stated that it would take evidence to overcome their belief. These jurors, however, stated that they could nevertheless be fair and impartial. The defendant's challenges for cause as to these jurors were denied. The Supreme Court held that in view of the admitted prejudice on the part of the jurors who actually heard the case, their statements that they could be fair and impartial were an insufficient basis upon which to find that the defendant had received a trial before a fair and impartial jury.
The situation here is much more similar to the Beck case. The trial here commenced in February, 1967, about 7 months after the crimes. Most of the alleged prejudicial publicity occurred in July, 1966, and for a period of several months there were either no news stories on the crimes or the stories were relegated to the back pages of the newspapers. As the date of the trial approached there were further news articles but these were factual accounts of the legal proceedings leading up to the trial and there is no contention that these articles were prejudicial. In the Beck case, trial was about 5 months after the indictment. The Supreme Court pointed out that the news value of the original disclosures was diminished and news articles were relegated to inner pages of the newspapers, and that occasional front page stories were straight news stories which did not tend to arouse ill will and vindictiveness. Every juror in that case who was challenged for cause by the defendant was excused. All jurors finally selected stated that they were not biased; that they had formed no opinion as to the defendant's guilt; and that they had an open mind. The court pointed out that the fact that defendant did not challenge for cause any of the jurors finally selected was strong evidence that he was convinced that the jurors were not biased.
The crime here was of a sensational nature and it was inevitable that some of the publicity would be of the same character. We are satisfied, however, from a review of the numerous exhibits and the voir dire examination of prospective jurors that the defendant received a trial from a fair and impartial jury in Peoria County and that the court did not err in denying a motion for a further change in the place of trial.
After the cause had been transferred to Peoria County, the defendant filed a motion for a substitution of judges. It is clear that this motion was submitted under section 114-5(a) of the Code of Criminal Procedure, (Ill. Rev. Stat. 1967, chap. 38, par. 114-5(a), providing for an automatic substitution of judges without proof of actual prejudice if such a motion is filed within 10 days after the case has been placed on the trial call of the judge. Section 114-5(c) of the Code provides a further procedure for obtaining a substitution of judges based upon a showing of actual prejudice on the part of the judge. Defendant did not submit any affidavit or evidence to show actual prejudice, but contends that under the automatic substitution provision the judge had no choice but to grant the motion. Prior to the transfer to Peoria County, preliminary proceedings in Cook County had been conducted before the Honorable Herbert C. Paschen, Judge of the Circuit Court of Cook County. Judge Paschen had already presided over a pretrial sanity hearing, had granted the motion for change of place of trial and had denied a motion to dismiss the indictments. When the cause was transferred to Peoria County the Chief Justice of this court assigned Judge Paschen to hold court in Peoria County for the duration of the trial of this case and the Chief Judge of the Tenth Judicial Circuit then placed the case on Judge Paschen's trial call. Defendant filed a motion for substitution of judges within 10 days after the case had been placed on the trial call in Peoria County and he contends that the filing of the motion was timely. This court has always held that a motion for an automatic substitution of judges comes too late after the judge has ruled on matters going to the merits. (People v. Wilfong, 17 Ill.2d 373.) Defendant had not requested a substitution of judges before any of the Cook County proceedings and his motion came too late, even though it was technically filed within 10 days after the case had been placed on Judge Paschen's trial call.
The defendant raises a further point with respect to the procedure at the trial. Prior to trial the court entered an order restricting the publicity to be given various trial proceedings. The order provided, among other things, that the names and addresses of selected, excused, or prospective jurors should not be published until after a verdict had been returned. Shortly thereafter, by agreement between the prosecutor and defense counsel, the order was modified to provide that the names and addresses of selected jurors should not be published until after all selected jurors and alternates had been sworn and sequestered. One day after the parties had agreed upon this modification, but before the amended order had been reduced to writing, an original petition for a writ of mandamus was filed in this court by the Tribune Company, the publisher of a Chicago newspaper, against the trial judge, seeking a declaration that the original order restricting publicity was invalid. The defendant sought leave to intervene in that proceeding but we denied this request. We entered an interlocutory order providing, among other things, that the order of the trial court should be modified so as to provide that the names of prospective jurors should not be reported until such individuals were either excused or sworn as jurors and sequestered. Thereafter, on motion of the petitioner, the mandamus petition was dismissed without prejudice. After these proceedings, and while the parties were still examining prospective jurors, defendant moved that the original order of the trial court be reinstated, but the court denied the motion. It is contended that this ruling was erroneous. The argument is based almost entirely on the transcript of the voir dire examination of one juror. This juror stated that he feared that it might reflect upon his family if he signed a verdict releasing the defendant after all the publicity in the case. He also said that he would not want his name publicized if he signed a guilty verdict. It is apparent from the examination of this juror that he was not so much concerned with having his name published as a selected juror as he was with having his name published after the verdict was rendered. The defendant does not now claim and did not claim in the trial court that the court should restrain the publication of the names of jurors after verdict and, in fact, sought a reinstatement of the original order to provide that their names should not be published until after verdict. The transcript of the examination of this juror does not lend support to defendant's argument that publication of the names of the jurors after they had been selected and sworn was prejudicial to the defendant. In view of the defendant's prior agreement to the entry of such an order, the fact that no prejudice has been established, and the fact that the order which remained in effect was in accordance with this court's order, we are of the opinion that the trial court did not err in refusing to reinstate the original order.
We next consider defendant's claim that the evidence was insufficient to establish his guilt beyond a reasonable doubt. The principal witness for the prosecution was Corazon Amurao, a native of the Philippines, who was in Chicago as an exchange nurse. She lived in a townhouse apartment building on the south side of Chicago with seven other young women, all of whom were either exchange nurses or student nurses. On the night of July 13, 1966, at about 11 o'clock, she was awakened by a knock on her bedroom door and upon opening the door she was confronted by a man holding a gun, whom she identified as the defendant. Miss Amurao and her roommate fled to another bedroom and the two women, together with a woman into whose bedroom they fled, ran into a closet and closed the door. They remained there for several minutes and then heard a female voice asking them to come out of the closet. This unidentified person said that the man was not going to harm anyone. When the three left the closet Miss Amurao saw the defendant holding another woman around the waist and two other women standing in the room near him. The defendant, who still had a gun, directed the six women to sit on the floor and they complied with his request. One of them asked the defendant what he wanted and he said that he wanted money to go to New Orleans. The women said that they would give him money and the defendant permitted three of them who lived in the bedroom to stand up and get money from their purses. Another said that she had money in her purse in another room and at the defendants' request all of the women walked to the other room where the woman handed some money to the defendant, after which they went back to the bedroom where they had been seated. They then heard a female voice downstairs and soon thereafter another woman came upstairs and entered the bedroom where she was confronted by the defendant and directed to sit down. The defendant asked this woman for money and she handed him some.
The defendant then cut a bed sheet into strips and commenced tying up each of the women. As he was tying the fifth one, the downstairs doorbell rang. The defendant directed Miss Amurao and another woman to accompany him downstairs where Miss Amurao opened the front door. There was no one at the door and the defendant and the two women went back upstairs. The defendant then finished tying up all of the women, after which he untied one of them and led her out of the room. While the defendant and this woman were out of the room two other women came into the bedroom where all of the women were tied. The defendant came in immediately thereafter and directed these two women to follow him out of the room. Miss Amurao heard noises as if these women were struggling and in about 20 minutes the defendant returned. One by one he untied a woman and led her from the room and returned for another. Miss Amurao hid under a bed. When the defendant came to the last of the women, with the exception of Miss Amurao, he undressed her and got on top of her on one of the beds, after which he took this woman out of the room. Miss Amurao remained under the bed for about two hours until an alarm clock went off at 5:30 in the morning. She then managed to untie herself and inspected the other rooms in the building. She saw one body in the bathroom, three bodies in one bedroom and three bodies in another bedroom and went to the window and screamed for help. When a police officer arrived on the scene he discovered the body of another woman on the livingroom couch.
A pathologist testified that 6 of the bodies bore stab wounds and five bodies showed evidence of strangulation. In three cases the victims ...