Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Judgments affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
In a two-count indictment, the defendants, Phillip Spagnola and John Ligue, ages 18 and 21 respectively, and two other youths, William McAvoy and Kenneth Cunningham, 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 other three coindictees, Spagnola, Ligue and Cunningham, were jointly tried by a jury, were convicted of murder and judgments were entered. In a separate opinion filed today, we affirmed Cunningham's conviction. See People v. Cunningham, 123 Ill. App.2d 190, ___ N.E.2d ___. After judgments were entered against Spagnola and Ligue for murder and their oral post-trial motions for a new trial and in arrest of judgment were denied, Spagnola was sentenced to fifteen to thirty years in the State Penitentiary and Ligue received a twenty to forty-year sentence.
At the time of sentencing, one joint indictment was pending against Spagnola and Ligue for armed robbery and two two-count indictments for attempt murder and aggravated battery the latter two indictments arising out of the same criminal transaction as the murder but having two other victims. After being sentenced on the murder charge, both Spagnola and Ligue waived their right to a jury trial as to these other three indictments. The court heard stipulated testimony and entered six judgments finding each defendant guilty of armed robbery and attempt murder. Spagnola was sentenced to two to seven years for armed robbery and two to five years on each conviction of attempt murder, the sentences to run concurrently with the imprisonment earlier imposed for murder. Ligue received concurrent sentences of five to ten years for armed robbery and three to five years on each conviction of attempt murder. Although Spagnola filed a notice of appeal challenging his convictions for armed robbery and attempt murder, the instant brief in behalf of Spagnola and Ligue concerns itself only with their convictions for murder and Ligue's convictions for armed robbery and attempt murder. No point is raised in this brief concerning Spagnola's convictions for armed robbery and attempt murder although all eight appeals were consolidated in this court. These three judgments, affecting Spagnola only, are accordingly affirmed.
Turning to the contentions raised by the parties in their joint brief, Ligue alone urges that all four of his convictions (i.e. murder, armed robbery and attempt murders) should be reversed because the trial court erred in not granting his written motion for discharge based upon the State's alleged failure to try him within 120 days following his arrest. Regarding their murder convictions, Spagnola and Ligue raise four points on appeal: (1) the court erred in denying their motion challenging the array of prospective jurors; (2) they were not criminally responsible for the spontaneous act of their companion, Cunningham, which caused death, in that the prosecution failed to show a common design to do an unlawful act, nor that they participated in the assault causing the victim's death; (3) the court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter; and (4) improper conduct by the decedent's widow before the jury together with the introduction, over objection, of incompetent evidence by the prosecutor and his prejudicial rebuttal final argument deprived them of a fair trial.
As to the speedy trial contention urged by Ligue, we note that he was arrested in February, 1965, was never admitted to bail, and his jury trial began in January, 1966. In the interim, the public defender was appointed to represent him beginning with his arraignment in March, 1965. The defendant voiced no objection to this representation until August 16, 1965, when the common-law record indicates that he appeared in court and moved that the Public Defender be replaced by a Chicago Bar Association lawyer. The common-law record also reveals that this motion was denied, after argument, and the cause was continued to August 27, 1965, by "the express consent of the State's Attorney and the defendant and his counsel." The common-law record also shows that on September 17, 1965, the defendant renewed his request for a Chicago Bar Association lawyer and the court, again with "the express consent and agreement of the State's Attorney and the defendant and his counsel," continued the case to October 11, 1965, for the appointment of such counsel. On this latter date the public defender was granted leave to withdraw and a private attorney was appointed. When Ligue's case was reached for trial on January 24, 1966, he filed his motion to dismiss the four indictments pending against him on the grounds that his right to a speedy trial had been violated. He urged that the 120 days be counted from September 17, 1965, when he had renewed his motion for substitution of attorneys.
On the basis of this record, we hold that the defendant Ligue agreed to these continuances so that the 120-day rule found in Ill Rev Stats (1963), c 38, § 103-5 (a) began to run from the date to which the case was continued for the appointment of new counsel which would be October 11, 1965, in the instant case. People v. Kuczynski, 33 Ill.2d 412, 415, 211 N.E.2d 687, 689 (1965); People v. Barksdale, 110 Ill. App.2d 163, 166, 249 N.E.2d 165, 167 (1969). Although the record contains no apparent reason for the trial court's change of attitude after Ligue renewed his motion for substitution of counsel, the record is clear that Ligue sought this substitution and consented to the continuance to October 11, 1965. Since the defendant was tried within 120 days from October 11, 1965, the trial court properly denied his motion for discharge.
On January 24, 1966, prior to the commencement of the voir dire examination in the murder case involving Spagnola, Ligue and Cunningham as joint defendants, 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 defendants' 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, 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 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 and the State were each allowed a total of sixty (60) peremptory challenges.
In their joint brief before us, Spagnola and Ligue contend that the trial court erred in denying the Challenge to the Array because the reasonable effect of the facts as pleaded in the Challenge, was to leave an impression in the minds of the veniremen that they would be called upon to explain or defend a not guilty verdict and that they could be publicly rebuked by the trial judge for such a verdict and thereby subject to public ridicule. We are of the opinion that the trial judge handled this difficult and delicate matter in a reasonable manner and with the proper exercise of his discretion. Within this factual setting, the proper remedy was to expand the voir dire examination and not to impose a thirty day continuance. It does not follow that the other veniremen would be per se prejudiced against defendants or that they could not return a fair verdict.
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 request to challenge for cause all jurors who had read the newspaper articles, they were not prejudiced by this ruling since they had nineteen peremptory challenges remaining at the time the jury was accepted and sworn.
Although many of the prospective jurors stated during voir dire that they had read the newspaper articles in question and a few said they had heard other jurors talking about the articles in the jury assembly room, this alone is not decisive as 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 veniremen. People v. Kurtz, 37 Ill.2d 103, 108, 224 N.E.2d 817 (1967). We have carefully examined the seven hundred and twenty-two page transcript of the voir dire examination presented to us and note that all of 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. Some of the twelve jurors acceptable to both sides, including the later foreman of the jury, stated that they thought the other judge was incorrect in criticizing the other jury for doing their duty. 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.
It is also to be noted that when the jury was sworn, the defendants had nineteen unused peremptory challenges. This too indicates that the lawyers 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, 531-2, 240 N.E.2d 645 (1968); People v. Speck, 41 Ill.2d 177, 184, 242 N.E.2d 208 (1968). In our opinion, the defendants were tried by a fair and impartial jury.
Since the defendants contend that they are not criminally responsible for the spontaneous act of their companion, Cunningham, which caused death in that the prosecution failed to show a common design to do an unlawful act, nor their participation in the murderous assault, it becomes necessary to give a summary of the evidence.
This case involves a homicide which occurred in a Chicago tavern at approximately 12:15 a.m. on February 20, 1965. It was stipulated that the cause of death of the victim, Jack Naylor, a patron in the tavern, was internal bleeding. Eight other patrons in the tavern testified for the State. Three of them, James Norred, Robert Naylor, brother of the decedent, and Ruby Brookbank were eyewitnesses to the homicide and stated that Cunningham while holding the smaller, narrower end of a pool cue stick in both hands and swinging the pool cue like a baseball bat, struck the deceased a downward blow on the left side of his head. The decedent was unarmed and was sitting at the bar when he was struck. It is undisputed that the defendants, Ligue and Spagnola, were present in the tavern at this time. Disputed at the trial, however, was whether they had their guns drawn immediately upon entering the tavern, thereby subduing the patrons prior to Cunningham's act, or whether they drew their weapons after a purported melee occurred in the tavern.
James Norred testified that he was in the bar at 11:30 p.m. on February 19, 1965, when Cunningham, Spagnola, Ligue, Ligue's father, and another youth came in; that he began a conversation with Ligue since they knew each other and it was during this conversation that he heard the bartender, Bennie Micele, while walking away from Ligue, Sr., say the bar was closed and he was not going to serve him. Thereupon the defendant, Ligue, Jr., pointing at the bartender, uttered a profanity and said he was going to get him. Norred also saw a fight beginning at this time between another patron and the defendant Cunningham, but this was stopped at its inception. Cunningham, Spagnola, the Ligues, and the other youth then left the tavern. Norred said he ...