The opinion of the court was delivered by: Ward, Justice.
Rehearing denied January 28, 1969
The defendants, Vincent Gendron and Paul Baykowski, were indicted and tried for murder before a jury in the circuit court of Alexander County. They were found guilty of voluntary manslaughter and each was sentenced to the penitentiary for a term of 10 to 15 years. A claim of a constitutional question of due process brings the matter here on direct appeal.
The record discloses that on the night of April 13, 1966, when the defendants were in the Hub Lounge in Cairo, Baykowski became involved in a violent scuffle with the proprietor, Charlie Thompson. When David Caughlin, another patron of the tavern, came to the aid of the injured Thompson, he was shot to death. Eyewitnesses testified that each of the defendants had fired at Caughlin, who was unarmed. The defendants fled but were apprehended in a car a short time later.
The defendants contend first that the trial court's denial of their motions for a change of place of trial deprived them of their constitutional right to a fair trial before an impartial jury. It is claimed the denial compelled their trial in a county where strong prejudice against them existed as a consequence of certain pretrial publicity. They do not complain of publicity, if any, which attended the trial.
The publicity they refer to consists of 9 front-page newspaper articles which appeared in the Cairo Evening Citizen during a 5-week period following the commission of the crime. In their motion, which was filed on May 31, 1966, the defendants also made a general and undetailed complaint in regard to radio and television broadcasts during this period. The first news story questioned appeared the day after the crime, April 14. It reported a description of the crime, the apprehension of the defendants, and that they were charged with murder. Gendron was once referred to as a recently paroled ex-convict who had been serving a term for armed robbery. Also included was a statement that neither the sheriff nor city police would comment as to the connection, if any, the defendants had with local persons. A `mug shot' of Gendron taken at the State penitentiary accompanied the article. A brief story carried the next day stated that several guns had been seized at the time of the defendant's arrest and stated that the police had found a narcotics capsule and a cigarette possibly containing marijuana in rechecking the scene of arrest. Much contained in the other 7 stories challenged here was routine news material relating to the progress of the prosecution of the case through the arraignment. However, an article published on April 19 referred to the defendants as ex-convicts. Beneath the article were photographs of the defendants which had been taken in the local jail. Also, on April 29, the newspaper reported that Gendron had been transferred from the county jail to Menard penitentiary as a parole violator. An article on May 10 included a report of an attempted jail break by the defendants prior to their preliminary hearing. The last publication concerned appeared on May 9, 1966, about six months prior to the trial of the defendants. It stated that Gendron had complained in a court appearance, prior to his arraignment, of newspaper references to his underworld connections, which connections, it was reported, he denied.
The defendants offered testimony of 8 residents of Alexander County in an effort to prove that they could not obtain a fair trial in that county. The State countered with 76 affidavits to support its motion to dismiss on the ground that a fair trial for the defendants could be had in Alexander County. The trial court denied the defendants' motion on September 27, 1966. Selection of the jury was commenced on November 15, 1966, and was concluded on November 21, 1966. The defendants renewed their motion several times when the jury was being selected, but each time it was denied.
Of 297 prospective jurors examined in the selection of the jury, the defendants note that 123 were excused for cause-prejudice which arose from publicity.
The record shows that on the Voir dire examination, the trial court carefully questioned each prospective juror individually regarding the publicity. Additionally, counsel for each defendant, as well as the prosecutor, was permitted to examine each juror separately and at length. Of 14 jurors selected, including the alternates, 13 had read or heard of the case. However, each of them denied having formed any opinion of the guilt or innocence of the accused and each related that he or she would be a fair and impartial juror. Every juror stated that he or she would base the verdict only on the evidence and would follow the court's instructions as to the law.
`[T]he rule is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Meyers, 381 Ill. 156, 44 N.E.2d 870; People v. Witte, 350 Ill. 558, 183 N.E. 622.' (People v. Berry, 37 Ill.2d 329, 331, 226 N.E.2d 591.) However, the fact of potentially harmful publicity within a community alone does not establish proof of community prejudice, as each case must be judged on its own facts. (See People v. Berry, 37 Ill.2d 329, 331, 226 N.E.2d 591; Blumenfield v. United States (8th cir.), 284 F.2d 46.) And knowledge of a case will not of itself disqualify for jury service.
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, was a case in which the Supreme Court held that highly prejudicial publicity had so infected the community of trial that the defendant had been deprived of a fair trial. However, in that case the Supreme Court realistically commented: `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.' Here, of course, the jurors denied having had any preconceived notions as to guilt or innocence.
Too, our observation in People v. Kurtz, 37 Ill.2d 103, at p. 108, 224 N.E.2d 817, at p. 820 is pertinent. `The examination of prospective jurors on Voir dire is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among persons summoned as jurors.'
The articles, in our opinion, were not so gross and inflammatory as to require a conclusion that jurors, despite avowals of impartiality, had been prejudiced against the defendants. There was an interval of six months between the publicity complained of and the trial, which, considering the publications, can reasonably be regarded as having been sufficient to dissipate any unfavorable effect from it or to reduce it to unimportance. (People v. Berry, 37 Ill.2d 329, 332, 226 N.E.2d 591.) The examination of prospective jurors did not disclose the presence of any attitude of prejudice toward the defendants. It appears, too, that the defendants were satisfied that the selected jurors were properly indifferent, as no challenge for cause was made to the trial judge as to any of them. (See Beck v. Washington, 369 U.S. 541, at 557, 558, 82 S.Ct. 955, 8 L.Ed.2d 98, at 112.) Considering the several factors discussed it cannot be reasonably contended that the trial court abused its discretion in denying the motion for a change of the place of trial. This conclusion is unaffected by the further argument of the defendants, to show community prejudice, that a certain brochure had been widely circulated before the trial in the community. It purported to reproduce what appeared to be a confession given to an offense entirely unrelated to the crime here, and its cover referred to `unsolved and unpunished-killings-bombings-arsons.' The circular did not refer to the defendants or to any matter involved in this case and the defendants do not claim that any of the jurors selected read it or associated it with their case.
The defendants next argue that because their defenses were antagonistic the trial court erred in overruling their motions for severance. However, neither defendant testified nor offered any other evidence at trial, and neither defendant confessed to the crime nor implicated his co-defendant in any way prior to trial. Both defendants were silent from arrest to conviction.
We observed in People v. Wilson, 29 Ill.2d 82, 91, 193 N.E.2d 449, 454: `The general rule is that persons jointly indicted for the commission of a crime should be tried together and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court. The paramount inquiry is whether the defenses are of such an antagonistic nature that a severance is imperative to insure a fair trial. (People v. Grilec, 2 Ill.2d 538, 547, 119 N.E.2d 232.)' (Accord, People v. Henderson, 37 Ill.2d 489, 229 N.E.2d 519.) Here, each defendant's motion failed to show that he would be ...