APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding.
Rehearing denied May 26, 1970.
Defendants, Herman Bernette and Martin Tajra, were jointly indicted along with Samuel Young and Joe Ray Garrett for the murder of Richard Williams, who was slain in the course of an armed robbery. Bernette and Tajra were tried together in the criminal court of Cook County and found guilty. The jury fixed Bernette's punishment at death while Tajra was sentenced to a term of imprisonment of 75 to 150 years. On direct appeal, this court reversed Bernette's conviction and remanded for new trial. (People v. Bernette, 30 Ill.2d 359.) On the basis of the Bernette decision, the appellate court similarly reversed Tajra's conviction and remanded the cause for a new trial. (People v. Tajra, 58 Ill. App.2d 479.) Subsequently, both defendants were jointly retried, found guilty and punishment as to each was fixed at death. Separate appeals were brought to this court pursuant to Rule 603 (Ill. Rev. Stat. 1967, ch. 110A, par. 603) and we consolidated for decision.
The facts surrounding the commission of the crime and the arrest of defendants have been adequately set forth in People v. Bernette, 30 Ill.2d 359, and need not be repeated here.
It is initially claimed by both defendants that the voir dire examination which was conducted violated the standards set out by the Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, which was decided subsequent to defendants' trial.
A review of the record before us indicates that the circumstances under which the voir dire examination was here conducted were unlike those in Witherspoon. In that case, the court noted that "the tone was set when the trial judge said early in the voir dire, `Let's get these conscientious objectors out of the way, without wasting any time on them.'" (391 U.S. at 514.) It is clear, however, that "In this case there was no hint of a desire for haste or for a perfunctory examination to see how many jurors could be disqualified on the statutory basis alone. On the contrary, the tone of the proceedings here indicated a sincere desire on the part of the prosecutor and the court * * * to determine the jurors' qualifications according to the standard later held acceptable in Witherspoon." (People v. Speck, 41 Ill.2d 177, 209; People v. Moore, 42 Ill.2d 73.) In all, 67 veniremen were examined out of which a panel of 12 was chosen. Of the 55 jurors excused, 17 were excused for having expressed conscientious or religious scruples against infliction of the death penalty, or approximately 30% of all those excused. And of these, it appears that 12 veniremen may have been improperly dismissed, or approximately 21% of all jurors excused.
At the outset of the voir dire examination an in camera conference was held to determine the procedure to be followed in qualifying the prospective jurors with regard to the death penalty. It was there decided that each prospective juror would be individually questioned as to his views on capital punishment. Immediately thereafter, the first panel was sworn and qualified by the court. None of the jurors so questioned at that time expressed any reservations, religious or otherwise, against the infliction of the death penalty in a proper case. Moreover, upon further inquiry by the assistant State's Attorney of prospective juror, Barbara Adam, the other prospective jurors being present in the courtroom, the following colloquy occurred:
"Q. Now, ma'am, we would like to inform you that in this case we would be asking for the death penalty as to both defendants, the death penalty. And I know his Honor asked you this but we have to be most certain of this. Would you have any reservations whatsoever if after hearing all the facts in this case and after deciding that these defendants have been proven guilty beyond a reasonable doubt, would you have any reservations whatsoever if you thought that the facts and the case as presented to you merited the death penalty, would you in any way reserve that verdict and would you have any hesitancy in returning a death penalty?
A. Well, I am against the death penalty.
Q. Well, in other words, you wouldn't return it, ...