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People v. Cole

JUNE 24, 1971.




APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.


Rehearing denied July 30, 1971.

The defendant appeals from his conviction of murder in a jury trial. A sentence of fifty to seventy-five years was imposed.

In his brief, the defendant asserts eight areas of review to be considered by this court. We need discuss only two of these issues — first, the impartiality of the jury, and second, because of our decision, the question of search and seizure.

In the court of the voir dire examination, the defendant exhausted his peremptory challenges. Subsequent thereto a prospective juror, Russell Davis, was examined as one of a panel of four. Davis was a lifelong resident of Sangamon County, whose wife was employed in the courthouse as a deputy of the Board of Review; whose son was employed as a civil engineer for the State of Illinois in the Highway Department; who had heard about the case through the news media; who had known the State's Attorney and his assistant for a number of years; who had worked for the State's Attorney in his campaign; who was a witness for the State's Attorney in a case in which he was privately employed; who was acquainted with one of the decedents and had conversed with him on the telephone; who had lived next door to a doctor who was a material witness and who also had been the juror's family doctor for a number of years; who indicated he had known the assistant State's Attorney "way back"; whose youngest son was married to a sister of a witness; who was related to another witness; who was personally acquainted with Edward Ryan, a material witness, and the sheriff of the county; who had served as treasurer of the campaign for Ryan; who had discussed this case with Ryan; and who obviously was a man well-acquainted with Springfield, its environs, its citizens and its "happenings".

Mr. Davis, throughout his voir dire examination, indicated concern about his service, as evidenced by certain of his answers:

"Q. Mr. Davis, in response to the question by the Court that you would not permit this relationship we might have had as when you testified as a witness at a prior hearing, this would not interfere with your duties as a juror if you are selected and you would render a fair and impartial verdict in this case, is that correct?

A. I'm only human, but I would attempt not to, yes.

Q. And if you were chosen as a juror, Mr. Davis, I'm sure that you would set aside any acquaintanceship that you might have had with me or Mr. Hollis in deliberating in this case?

A. I could do that, but I just wonder what the public would think."

Before examining the panel containing the juror Davis, the attorney for the defendant attempted to have Davis excused for cause. After a hearing in chambers, the court denied the challenge for cause and stated:

"You put the Court in a position here that a man has made all the tests that is prescribed by law and if this Court were to dismiss this juror for challenge for cause it would be indicating that the Court would be not accepting what he said here."

After the court denied the challenge, the attorney for the defendant, aware that his peremptory challenges were exhausted, attempted to present himself and the defendant as favorably as possible in the eyes of not only the juror Davis, but the venire as well.

• 1 This trial tactic is not a waiver of the defendant's right to object to the jury as selected.

Section 9 of Art. II of the Constitution of 1870, Ill. Rev. Stat. (1969), guarantees:

"In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed."

In People v. Cravens (1941), 375 Ill. 495, 497; 31 N.E.2d 938, 939, the Supreme Court said:

"It has often been stated by this court that great care should be exercised to preserve that constitutional right to a defendant, be he guilty or innocent. A juror, to be qualified, must come into the trial of the case with a mind uncommitted on the question of guilt or innocence of the defendant and prepared to weigh the evidence impartially * * *."

The court went on to say:

"It was a cardinal rule at common law that jurors, to be qualified as impartial, should stand indifferent between the parties and be wholly free from even the ...

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