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People v. Cunningham

APRIL 7, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH CUNNINGHAM (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment affirmed.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

In a two-count indictment, the defendant, Kenneth Cunningham, age eighteen, and three other youths, William McAvoy, Phillip Spagnola and John Ligue were jointly charged with murder in violation of Ill Rev Stats (1963), c 38, § 9-1(a) (1) or (a) (2). McAvoy's motion for a severance was granted and he received a separate trial. He did not testify in the instant case and this record is silent as to the ultimate disposition of his case. The three other coindictees, Cunningham, Spagnola and Ligue were jointly tried by a jury, were convicted of murder and judgments were entered. Spagnola and Ligue have appealed from these adverse judgments along with others against them which judgments we today affirmed. See People v. Spagnola (Impleaded) and Ligue (Impleaded), 123 Ill. App.2d 171, ___ N.E.2d ___. After judgment was entered against Cunningham for murder and his written post-trial motion for a new trial was denied, he was sentenced to 20-40 years in the State Penitentiary. In this appeal, he does not question the sufficiency of the evidence but maintains that he did not receive a fair trial due to five trial errors.

Specifically, he contends that: (1) he was denied the right to be tried by a fair and impartial jury due to prejudicial pretrial newspaper publicity informing the venire that twelve of their fellow jurors had been excused from jury service by a judge, not the jurist who presided at the instant case however, because they had returned a not guilty verdict with which the judge publicly disagreed; (2) the trial court erred in denying the defendant's motion for a mistrial when the widow of the deceased ran screaming from the courtroom during the testimony of the State's life and death witness and also when the jury commingled with relatives of the deceased and other veniremen; (3) the prosecution deliberately prejudiced the defendant by informing the jury of a prior statement made by a State's witness and by commenting on this statement to the jury in closing argument; (4) the trial court's refusal to give the defendant's tendered voluntary and involuntary manslaughter instructions was reversible error; and (5) the court erred in submitting a flight instruction to the jury which prejudiced the defendant since the prosecution presented no evidence that he attempted to flee from the scene of the crime.

On January 24, 1966, prior to the commencement of the voir dire examination in the instant case, the attorney for Cunningham presented to the court a written "Challenge to the Array of Jurors and Motion for (30) Day Continuance" which was signed by the defendant Cunningham, supported by his affidavit, and had attached to it as exhibits, three newspaper articles which had appeared in the Chicago press. The Challenge alleged that on the preceding Monday, January 17, 1966, a judge sitting in the Cook County Criminal Court Building (not the trial judge sitting in the instant case, however) had publicly criticized, discharged and dismissed from future jury service twelve jurors who had returned a not guilty verdict. The Challenge went on to state that these twelve jurors were part of the same venire from which the defendant's jury would be selected; that the jurors were discharged because the judge thought a conviction should have been returned and not an acquittal; that these jurors returned to the Criminal Court Building the next morning but were sent home; that these facts had been given publicity by the Chicago newspapers on Wednesday and Thursday, January 18 and 19, 1966; and that as a result of the foregoing factors, the venire was not lawfully constituted and a fair and impartial jury could not be selected from this venire. The Challenge concluded with a prayer that the trial be continued for thirty days so that the defendants could select a jury from a new venire. After hearing argument, the court denied the Challenge to the Array and Motion for a Continuance but informed the three defense counsel that each of them would be permitted the widest of latitude in the ensuing voir dire examination so that each could determine to his satisfaction whether the veniremen knew of this incident and the extent, if any, to which they were influenced by it. The trial court later refused to excuse such prospective jurors for cause, requiring the defendants to use their peremptory challenges. The record reveals that the defendants, Cunningham, Spagnola and Ligue, and the State were each allowed a total of sixty (60) peremptory challenges.

We doubt if this issue was properly brought to the trial court's attention by virtue of a Challenge to the Array. We recognize that defendant's counsel alleged in his motion that the venire was not lawfully constituted due to the dismissal of twelve jurors from future jury service, but such dismissal occurred subsequent to the selection of the array. A challenge to the array goes to the form and manner of selecting the venire and relates to the legality of selecting summoning, or impaneling the venire or array. Bruen v. People, 206 Ill. 417, 423-24, 69 N.E. 24 (1903); Borrelli v. People, 164 Ill. 549, 558-60, 45 N.E. 1024 (1897). It will only be allowed upon some ground affecting the validity of the whole array growing out of the proceedings in selecting and summoning the jurors composing the array. United States v. Gordon, 253 F.2d 177, 184-85 (CA 7th Cir 1958). In the instant case, the defendant's Challenge raised no question as to the drawing, selecting, or impaneling of the array. However, because the State did not object to the Challenge but answered it on its merits, we shall do the same.

In our opinion, the trial court handled this delicate matter in a proper manner. The remedy was not to impose a thirty day continuance but rather was to expand the voir dire examination so as to determine the effect of the pretrial publicity on the prospective jurors. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 723 (1961); People v. Williams, 40 Ill.2d 522, 531-32, 240 N.E.2d 645 (1968). Furthermore, the examination of prospective jurors is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among the array. People v. Kurtz, 37 Ill.2d 103, 108, 224 N.E.2d 817 (1967). We do not think that the incident alluded to in the Challenge which involved twelve other jurors and another trial court judge in an unrelated case must lead to the presumption, as a matter of law, that all other veniremen in the array no longer could be fair and impartial to the defendant.

The voir dire examination is included in the record before us. The examination of prospective jurors took approximately three days and the trial of the case on the ultimate issues took a like period of time. During the voir dire examination, the trial court informed the prospective jurors on four separate occasions that it had the practice, which it intended to continue, of never commenting on the verdict of the jury. Approximately ninety prospective jurors were examined and the majority of those who were asked the question stated that they had read, in the jury assembly room, the newspaper articles earlier alluded to, but most of them said they were not influenced by it and would continue to follow the dictates of their own conscience. The defendants used their peremptory challenges on those veniremen having a contrary attitude. When twelve jurors were acceptable to both sides and were sworn, the court had excused nineteen prospective jurors for cause and the State had used thirteen of its peremptory challenges whereas the defense had used forty-one. Although the defendants contend that the court erred in refusing their challenge for cause as to all jurors who had read the newspaper articles, they were not prejudiced by this ruling as they had nineteen peremptory challenges remaining at the time the jury was sworn.

We have carefully examined the seven hundred twenty-two page transcript of the voir dire examination presented to us and note that all the prospective jurors who ultimately made up the final panel of twelve and who were asked the question stated that what another judge did in an unrelated case and the newspaper publicity given it would not affect their deliberations in the instant case and that it would not be necessary to convict these defendants in order to avoid criticism from the judge presiding at this trial. The judge presiding at the instant case informed the prospective jurors on four separate occasions that he intended to continue his practice of never commenting on the verdict returned by the jury. Some of the twelve jurors acceptable to both sides, including the foreman of the jury, stated that they thought the other judge was incorrect in criticizing the other jury for doing their duty.

It is also to be noted that when the jury was sworn, the defendants had nineteen unused peremptory challenges. This too indicates that the attorneys for the defendants were of the opinion that these twelve jurors represented a fair and impartial trier of the facts. People v. Sleezer, 9 Ill.2d 57, 60-61, 136 N.E.2d 808 (1956); People v. Williams, 40 Ill.2d 522, 531-32, 240 N.E.2d 645 (1968); People v. Speck, 41 Ill.2d 177, 184, 242 N.E.2d 208 (1968). Counsel for the defendant states that he did not use the remaining peremptory challenges because he did not want to antagonize the trial court. However, the voir dire record does not indicate that the trial court ever became impatient with the defendants but rather it is evident to use that he, in fact, did allow an exhaustive voir dire examination so as to protect the rights of the defendants. Furthermore, the trial court had said earlier that the defendants had the right to exercise all of their sixty peremptory challenges. His subsequent attitude never wavered from this position.

The defendant's reliance upon People v. Schraeberg, 347 Ill. 392, 179 N.E. 829 (1932), in support of his contention that he did not have to exhaust all his peremptory challenges in order to preserve the point for appeal purposes is misplaced. In that case, the reviewing court held that since the defendant's Challenge to the Array should have been sustained in the trial court because of an irregularity in the selection of the array, it became unnecessary for him to exercise all of his peremptory challenges in order to preserve the point. We have stated earlier in this opinion, however, that the defendant's Challenge to the Array was properly denied by the trial court in the instant case. Therefore, when the defendants accepted twelve jurors, although nineteen peremptory challenges were still available for their use, we can reasonably assume that their attorneys were of the opinion that the jury was fair and impartial.

The other cases relied upon by the defendant are not persuasive. In both Irvin v. Dowd, 366 U.S. 717 (1961) and Rideau v. Louisiana, 373 U.S. 723 (1963), two murder cases, it was held that the defendant's motion for change of venue should have been granted because of cooperation between the police or prosecution and the news media which made it constitutionally impossible to select an impartial jury. In Irvin, the prosecutor and police issued press releases, which were intensively publicized by the news media, stating that the defendant had confessed to the six murders committed in their community whereas in Rideau, a twenty minute "interview" between the defendant and the sheriff of the parish was held in a jail and put on film with accompanying sound track. This "interview" consisted of interrogation by the sheriff and admissions by the defendant that he had committed the armed robbery, kidnapping, and murder which had occurred the day before. The "interview" was shown on local television for three consecutive days. In both Irvin and Rideau, defense counsel had exhausted peremptory challenges and unsuccessfully attempted to excuse for cause prospective jurors who had read the news releases or had seen the televised "interview."

Eight of the twelve jurors in Irvin admitted, before hearing any testimony, that they thought the defendant to be guilty of murder although they did say they could be fair and impartial to him. The reviewing court held this response showed actual prejudice to the defendant and that his 14th Amendment due process rights were violated whereas in Rideau, the court held that identifiable prejudice did not have to be shown in that case since the "interview" televised in the community on three separate occasions was in reality the defendant's trial at which he pleaded guilty. The subsequent jury trial was but a hollow formality. In two other cases relied upon by the defendant, Estes v. Texas, 381 U.S. 532 (1965) and Sheppard v. Maxwell, 384 U.S. 333 (1966), it was held that identifiable or actual prejudice in violation of due process rights did not have to be shown by the defendant because the procedures employed by the State, live television coverage of the court proceedings in Estes and massive pretrial newspaper coverage in Sheppard, involved such a probability of resulting prejudice that the trial itself was deemed inherently lacking in due process. The factual setting of the instant case in no way approaches that found in the cited cases however.

After carefully reading the other cases relied upon by the defendant, People v. Murawski, 394 Ill. 236, 68 N.E.2d 272 (1946); People v. Hryciuk, 5 Ill.2d 176, 125 N.E.2d 61 (1955); People v. Cain, 36 Ill.2d 589, 224 N.E.2d 786 (1967); McLendon v. United States, 2 F.2d 660 (CCA 6th Cir 1924); and Boyles v. United States, 295 F 126 (CCA 6th Cir 1924), we conclude that they too are factually distinguishable from the instant case. We adhere to our opinion that this record shows that the defendants were tried by a fair and impartial jury.

Secondly, the defendant urges that the trial court erred in denying the defendant's motion for a mistrial when the widow of the deceased ran screaming from the courtroom during the testimony of the State's life and death witness and also when the jury commingled with other veniremen and relatives of the deceased. The defendant was tried jointly with Spagnola and Ligue. In People v. Spagnola (Impleaded) and Ligue (Impleaded), 123 Ill. App.2d 171, ___ N.E.2d ___, filed today, we held that the trial court, by its immediate affirmative response to the widow's emotional outburst coupled with its later cautionary instruction given to the jury in writing, protected the defendants' right to be tried ...


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