APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Two indictments were returned against the defendants, Holice Black and Richard Black. In a three-count indictment they were charged with the murder, by shooting, of Charles Eichorst, a sergeant in the Chicago Police Department, in violation of Ill. Rev. Stat. (1963), ch. 38, par. 9-1 (a-1), (a-2) and (a-3). The other indictment charged them with the armed robbery of Marilyn Moline in violation of Ill. Rev. Stat. (1963), ch. 38, par. 18-2. Since the acts complained of were part of one criminal transaction, the two indictments were consolidated for trial.
Shortly before 9:30 A.M. on August 4, 1965, the Treasure Island Food Store located at 2540 Lawrence Avenue in Chicago was held up and robbed by a man with a gun who took $3500 in cash from a safe. During the course of the robbery, Marilyn Moline, a cashier who was placing the money in the safe, managed to set off a silent police alarm. While the robber was stuffing a bag with the money, a long shrill whistle was heard from the front of the store, whereupon the robber departed in haste. Meanwhile, Sergeant Charles Eichorst of the Chicago Police Department, responding to the silent alarm, came upon a man running from in front of the store across the parking lot adjacent to the store. Sergeant Eichorst pursued the man, apprehended him and ordered him against the wall of the store. At this time another man came running from the store, observed the situation in the parking lot, fired at Sergeant Eichorst, and killed him. Thereafter the two men fled through several streets, alleys and gangways in the neighborhood of the shooting and disappeared.
The defendants were tried jointly by a jury and were both convicted of murder and armed robbery. Judgments were entered and, after their written motions for a new trial and in arrest of judgment were denied, Holice Black was sentenced to 100 to 200 years for murder and 20 to 40 years for armed robbery, the sentences to be served concurrently. Richard Black received concurrent sentences of 75 to 100 years for murder and 20 to 40 years for armed robbery. The prosecution qualified the jury for the death penalty, but the jury did not recommend it.
In their joint appeal, the defendants, who are brothers, urge that the trial court committed reversible error by: (1) refusing to grant their written motion for a change of venue and by excluding jurors from service who were opposed to the death penalty; (2) refusing to enforce defense subpoenas of radio and television stations thru which the defendants sought additional evidentiary support of their motion for change of venue; (3) not granting the written motion for a continuance presented by appointed counsel for Holice Black on the day this case had been assigned for trial; (4) denying the defendants their right to a hearing on their motion to suppress evidence allegedly unlawfully seized and used against them at trial; and (5) denying Richard Black's written motion to suppress a written statement he had given to the court before trial in support of his pro se "Petition for Writ of Habeus Corpus Ad Testificandum." The defendants also allege faulty pre-trial identification procedures in violation of due process of law and improper conduct by the prosecutor which denied them a fair trial. The sufficiency of the evidence is not attacked in this appeal. At their trial, Holice Black was represented by appointed counsel, the Public Defender of Cook County, whereas Richard Black was represented by privately retained counsel. Neither of the defendants testified at the trial.
On the day this case had been assigned for trial, after several continuances had been granted to the defense, the defendants presented their written motion for a change of place of trial from Cook County or any of the counties adjacent thereto and alleged that all the newspapers, television stations, and radio stations in Chicago had, from the day of the homicide to the present time: (1) editorialized against them; (2) reported that they were the guilty parties to the exclusion of any other suspects; (3) presented human interest stories concerning the surviving family of the deceased police officer; and (4) presented the stories in such a way as to set out hearsay and other statements which would be inadmissible at the trial. This motion was signed by both defendants, supported by their affidavit, and had attached to it as exhibits many newspaper articles which had appeared in the Chicago press and copies of the messages which had been broadcast over various radio and television stations in Chicago. The motion for change of venue was taken under advisement and, after some voir dire had been conducted, the trial court denied it. The defendants have renewed the issue on appeal, again asserting that the jurors were prejudiced by adverse newspaper, radio and television publicity.
We find no merit in this contention. It has been held that the examination of prospective jurors is, in a typical instance of pre-trial publicity, probably the most valuable means of ascertaining partiality or indifference among the array. (People v. Kurtz (1967), 37 Ill.2d 103, 108, 224 N.E.2d 817, 820.) The voir dire examination is included in the record before us. The examination of prospective jurors took approximately eleven court days whereas the trial of the case on the ultimate issues took approximately eight days. During voir dire, 222 prospective jurors were examined. Defense attorneys exercised fifty-seven of their sixty peremptory challenges before twelve acceptable jurors were selected. The State exercised thirty-five of their peremptory challenges and the court excused 114 prospective jurors for cause, largely because of opposition to the death penalty. In the selection of two alternate jurors, the defense exercised two additional peremptory challenges.
We have carefully examined the abstract and the over twenty-three hundred page transcript of the voir dire proceedings. We note that six of the twelve jurors had never heard of the case. The remaining six had heard or read of it and vaguely remembered the incident, but had no opinion of the guilt or innocence of the accused and stated that they would base their verdict solely on the evidence presented in the courtroom. In Irvin v. Dowd (1961), 366 U.S. 717, 723 and in People v. Williams (1968), 40 Ill.2d 522, 531-32, 240 N.E.2d 645, 650, it was held that it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. After a careful examination of the voir dire proceedings, we are of the opinion that the twelve jurors accepted by both sides were shown to be fair and impartial.
Further, we note that when the twelve jurors were sworn, the defendants had three unused peremptory challenges. This too suggests that the defense attorneys were of the opinion that the selected jury represented a fair and impartial trier of the facts. (People v. Sleezer (1956), 9 Ill.2d 57, 60-61, 136 N.E.2d 808; People v. Williams (1968), 40 Ill.2d 522, 531-32, 240 N.E.2d 645; and People v. Speck (1968), 41 Ill.2d 177, 184, 242 N.E.2d 208.) Moreover, it was shown during voir dire that the majority of the alleged prejudicial publicity was concentrated in the period immediately following the homicide, namely, from August 4, 1965, to sometime in September, 1965, some six months before the trial. We note from a reading of the newspaper articles and radio broadcasts contained in the Books of Exhibits presented to us that the arrest of Holice Black in Miami, Florida, in December, 1965, was reported objectively and impartially by the press as was the surrender of Richard Black later in December to FBI agents in Chicago. There was no media coverage of this case from the time the defendants were arraigned in January, 1966, to the time of their trial in July, 1966. Thus, the motion for change of venue was presented eleven months after the crime and seven months after the case had been assigned to the trial judge and the last story had been published by the press or other media in Chicago. In the absence of any proof by the defendant of the existence of actual prejudice, this time lapse alone may be considered sufficient to dissipate any feeling of prejudice in the community. Beck v. Washington (1962), 369 U.S. 541, 556; and People v. Berry (1967), 37 Ill.2d 329, 332, 226 N.E.2d 591. No such proof is found in the voir dire proceedings.
• 1 The cases chiefly relied upon by the defense, (Estes v. Texas (1965), 381 U.S. 532; Sheppard v. Maxwell (1966), 384 U.S. 333; Delaney v. United States (1st Cir. 1952), 199 F.2d 107; United States v. Accardo (7th Cir. 1962), 298 F.2d 133, are factually distinguishable from the case at bar. In the cited cases, the prejudicial publicity occurred shortly before the trial and carried over to it or occurred during the trial itself. In another case relied upon by the defendants, (Irvin v. Dowd (1961), 366 U.S. 717, the defendant had exhausted his peremptory challenges and was unable to excuse for cause eight of the twelve jurors who admitted during voir dire that they thought the defendant was guilty of murder. These significant factors are absent in the case at bar. In view of the impartiality shown by the jurors in the voir dire proceedings, the time which had elapsed from the last news publication to the date of trial, and the fact that defense attorneys had not exhausted their peremptory challenges at the time twelve jurors were found to be acceptable by both sides, we hold that the trial court did not abuse its discretion in denying the motion of the defendants for a change of venue.
• 2 We are also of the opinion that the trial court did not abuse its discretion in refusing to grant a continuance on motion of the defense when news of the Speck multiple slayings and rioting on the west side of Chicago was published in the news media during the voir dire proceedings. The defense asked only of three prospective jurors whether they could be impartial in light of the Speck publicity and only one prospective juror about the riots on Chicago's west side, which is where the defendants lived. Each prospective juror indicated that the publicity regarding these collateral events would not affect his impartiality. Additional safeguards against the effect of any prejudicial collateral publicity are found in the fact that this jury was sequestered throughout the trial and the jurors' exposure to newspapers and television news programs was censored by court personnel pursuant to order of the trial court. We are of the opinion that the trial court was correct in not halting this trial because of the publicity given to these collateral matters.
• 3 In support of their contention that they were deprived of a fair trial because of the exclusion of jurors who were opposed to the death penalty, the defendants rely upon Witherspoon v. Illinois (1967), 391 U.S. 510, and Boulden v. Holman (1969), 394 U.S. 478. Both of these cases are addressed only to the sentence imposed by such a jury, and hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Because the death penalty is not involved in the case at bar and there is nothing in the record to support the defendants' assertion that a jury inclined to impose the death penalty is also predisposed to return a guilty verdict, we reject this contention. See People v. Hough (1968), 102 Ill. App.2d 287, 298, 243 N.E.2d 520.
In light of our holding that the defendants were tried by a fair and impartial jury, we need not decide whether the trial court committed reversible error by refusing to enforce the subpoenas addressed to ...