APPEAL from the Circuit Court of Crawford County; the Hon.
RANDALL S. QUINDRY, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant, Clarence Eugene Wilson, was tried by a jury in the circuit court of Wayne County on a three-count indictment charging the offenses of murder, murder while attempting to commit burglary, and attempt to commit burglary. He was found guilty on all three counts, but was sentenced only on two counts: on the murder count and the conviction thereunder, to a term of from 50 to 75 years in the penitentiary, and on the attempted burglary count and conviction, to a term of from 10 to 12 years, the sentences to be served consecutively.
On appeal, the defendant contends (1) that he was denied a fair and impartial trial by the State's introduction of prejudicial references to the deceased's family and the prejudicial introduction into evidence of the defendant's prior convictions; (2) that the jury's verdict was improperly returned and therefore insufficient to support the judgment of conviction; and (3) that the defendant was improperly sentenced.
The contention raised by the defendant which requires our most careful scrutiny is that he was denied a fair and impartial trial because of prejudicial testimony which referred to the deceased's surviving widow and children, his good standing in the community and his reputation as a sincere and conscientious police officer. Therefore, although the defendant has not urged that he was not proved guilty beyond a reasonable doubt, we believe it necessary to detail the evidence so that the testimony alleged to be prejudicial may be considered in the context of the facts of the case.
The defendant, Wilson, along with two other men named Sharp and Mitchell, agreed to burglarize the Big John Supermarket in the village of Oblong. A chicken wire cage, located at the rear of the supermarket, was apparently used for the purpose of storing empty soda bottles, and it was through the supermarket door to this cage that the defendant and his companions attempted to enter the store. While they were in the cage and in the process of gaining entry to the store, police officer Jack Fancil arrived at the scene and ordered them to come out of the cage. Sharp and Mitchell obeyed the officer's orders, came out and stood up against the wall of the building. Apparently, Wilson remained in the cage and as Officer Fancil approached the other two men, Wilson fired at him with a hand gun. The officer returned the fire and numerous shots were exchanged.
Two young men, who were in the squad car with Fancil previous to the shooting, testified that two men came out of the cage and stood up against the wall of the building; that the third man then came out of the cage and fired his weapon at Fancil, who was struck by one or more of the shots and fell to the ground fatally wounded; that they heard Fancil call for help and they radioed for help on the squad car's police radio; and that the man who fired at Fancil started to run away, but fell down as though he had been struck by one of the shots fired by Fancil.
A witness, who lived across the street from the supermarket, testified that she was awakened by the shots and saw two men, one dragging the other, come across the street from the supermarket and go through her yard. Police officers who arrived at the scene in response to the call for help, saw Fancil lying on the ground not far from the cage. A satchel containing burglar tools was found inside the cage. The investigating officers were informed about the two men who crossed the street, and found the defendant lying in a barn lot across the street from the store. He had been wounded in the hip.
The defendant's companion, Sharp, testified that he was the one who helped the defendant across the street after he had been wounded, and that as he was helping him, the defendant threw down a flashlight and screwdriver; that the flashlight and screwdriver were thereafter found by another witness who lived in the area. The same witness also found the gun, which according to the testimony of the defendant's two companions, had been carried and fired by the defendant. The bullet which caused Fancil's death was shown by a ballistics test to have been fired by the gun carried by the defendant.
Sharp also testified that he had a gun in his possession on the evening of the offense, but had not fired it, and had so effectively hidden it in the woods while making his escape, that no one ever found it.
It is the defendant's initial contention that he was denied his right to a fair and impartial trial because of certain irrelevant and inflamatory testimony introduced into evidence by the prosecution. The officer's widow was not called to testify. However, early in the case, the prosecution called as a witness Robert Stewart, sheriff of Crawford County, who was involved in the investigation into Fancil's death. Sheriff Stewart had been acquainted with Fancil for many years and testified under interrogation by the prosecution, that Fancil was approximately 25 years of age, was married, and had two young children; that he was a native of the area, a good police officer, and was sincere and conscientious about his duties; and that, in his opinion, Fancil was highly respected in the area in which he lived. No objection was made to any of this testimony. Further, the prosecution in final argument referred to the loss of Fancil, not only to his wife and his children, but also to the community in which he lived. Defense counsel made no objection to these remarks. While failure to object to the testimony of Sheriff Stewart and to the argument by the prosecutor normally waives the right to raise the point on review (People v. Myers, 35 Ill.2d 311, 331, 334-335), we will review the allegedly prejudicial testimony and argument to ascertain if it did deprive the defendant of a fair trial.
We have repeatedly condemned references by the prosecution to the surviving family of the deceased in murder cases, and the defendant contends that this issue is conclusively determined by our language in People v. Bernette, 30 Ill.2d 359. We stated there that the defendant's guilt must be established by legal and competent evidence, uninfluenced by bias or prejudice raised by irrelevant evidence, and where evidence that the deceased has left a spouse and family is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. We also held that argument by the prosecutor which dwells upon the decedent's family, or seeks to relate a defendant's punishment to the existence of his family, is inflammatory and improper.
In Bernette, the widow of the murder victim was called as a witness, and the prosecutor, without objection by the defense, elicited answers from her concerning the surviving family of the deceased. During final argument to the jury, the prosecutor commented upon this circumstance. It is obvious that the testimony of the widow, which had no relevance to the guilt or innocence of the accused, and the remarks of the prosecutor, were prejudicial to the defendant in the eyes of the jury.
Since Bernette, we have held that every mention of a deceased's family does not necessarily, in and of itself, entitle the defendant to a new trial, since, in certain instances, dependent upon the factual circumstances, such evidence and argument can be harmless, particularly when the death penalty is not imposed. (People v. Jordan, 38 Ill.2d 83, 91-92.) In Bernette, the jury imposed the death penalty against the defendant, but the jury did not do so in Jordan.
In People v. Gregory, 22 Ill.2d 601, the sentence imposed upon the defendant was unusually severe 199 years and we there reversed because of the combination of an improperly admitted confession containing references to the commission of other crimes, and the highly inflammatory argument of the prosecutor referring to the deceased's widow and children. We there held that in any case wherein the jury fixes the punishment, ...