APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. JUSTICE RICHARD MILLS DELIVERED THE OPINION OF THE COURT:
"The tragedy of man is that he can conceive perfection but he cannot achieve it. Man's reach is always beyond his grasp."
The perfect trial has yet to be tried. And we venture to suggest that it never will be. For any creation of man is merely a reflection of himself imperfection. Consequently, there is no such thing as a perfect trial. All we can reasonably and logically strive for is a fair trial the "cutting edge" to our system of criminal justice.
The jury trial in this case admittedly was not perfect, but it was fair. Every constitutional right and safeguard was afforded the defendant as is reflected by the 2,706 pages of the record before us. A brace of very able and ingenious court-appointed trial defense counsel obviously labored long in an exhausting effort to (1) win before the trial judge, (2) get a favorable verdict from the jury or (3) preserve sufficient error to satisfy a reviewing court that a reversal must occur. However, and in short, we hold that the trial judge did not commit reversible error in his procedural rulings, that the jury trial was fair and its verdict proper and that whatever error exists in this record is insufficient to dictate reversal. In balance, justice was done.
Briefly, the facts in this murder prosecution are as follows: At about 10:45 on an April evening, a tow truck driver on his way to see a customer found a man alongside a lonely country road outside the City of Springfield. The man said that he had been shot and asked to be taken to a hospital. The tow truck driver reported to his base station immediately on his radio, and the State Police came to the scene at about 11:15 P.M. The State Trooper Boone found the tow truck sitting in the middle of the road and the man lying alongside of the road. He recognized the man as a local automobile dealer and observed that his shirt front was covered with blood. Trooper Boone asked the man who shot him and he said he didn't know. The Trooper also asked where his car was and he said he didn't know. The wounded man was taken to the hospital and at approximately 1:30 A.M. the following morning Trooper Boone had another conversation with the man. In the emergency room the wounded man told him again that he did not know who shot him, that he had met this fellow at 5th and Jefferson Streets in Springfield, that they went for a ride around the lake and that they had not parked. Another trooper, Dragoo, was present at the first conversation and testified to a conversation with the wounded man substantially similar to the one related by Trooper Boone. Following emergency surgery, the wounded man died at approximately 10:30 A.M. that morning.
A deputy sheriff testified that the defendant was found asleep in the decedent's car at 5:22 A.M. the same morning and that there was blood on the left front seat, left door and left rear fender of the car. When he was apprehended, the defendant had the decedent's driver's license and credit cards in his own wallet, and he had the victim's cigarette lighter and wallet (containing checks and papers of the decedent) in his pocket. The decedent's sport jacket was found folded on the back seat of the car and in the pocket was decedent's gold wedding ring. The defendant was placed under arrest and remained in the county jail until trial. At the jury trial, Parisie testified on his own behalf and admitted that he shot deceased. He also admitted that he had stolen the pistol used to kill the decedent during a burglary a few days earlier and that he had fired the pistol in his hotel room before the shooting of the decedent. Parisie was found guilty by the jury and was sentenced by the court to a penitentiary term of 40 to 70 years.
The defense was that of insanity insanity based upon "homosexual panic." The single constant thread woven throughout the fabric of this appeal is the issue of homosexuality and the theory of defendant attempting to equate "homosexual panic" with insanity. And since this theory underlies some of the specific issues raised, we will consider it at the outset.
The defendant on the stand testified that he had met the deceased sometime before the date of the incident when he was in the automobile dealership looking for a used sports car. He testified that on the night in question he was walking on 5th Street in Springfield when decedent's car pulled up next to him and the decedent offered him a lift. He said that the decedent drove out of Springfield, past the lake, turned down a gravel road and parked. Defendant further testified that after turning off the lights and sliding back the seat, decedent made a homosexual advance, smiled and said if the defendant refused he would have to walk. Parisie testified that he just "blew up, went crazy," vaguely remembered struggling with the decedent and hearing a noise that he assumed to be gunshots. The next thing he remembered clearly was being in the deceased's car in a Springfield parking lot and he did not remember how he got there.
Defense, both at the trial stage and in this court, has devoted much of its energies to impute that the prosecution failed to prove defendant's sanity beyond a reasonable doubt. In this regard, the Illinois law reads thusly:
(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The term `mental disease or mental defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."
Illinois Revised Statutes, 1967, Chapter 38.
With this legislative overleaf, we now look at the extensive and voluminous testimony and evidence given by both the prosecution and the defense in this area. (The court notes at this point that the trial judge permitted very liberal and extensive testimony by the professional and expert witnesses in this area.) Defendant called a clinical psychologist who testified that Parisie was a highly delusional paranoid schizophrenic, who was a loner, with a basic distrust of people, a highly latent homosexual with strong feelings of inferiority, and that a severe stress situation of any type could result in an acute schizophrenic reaction with accompanying amnesia. Defendant then called a psychiatrist who testified that "homosexual panic" is a severe panic or fear reaction that is provoked by extreme anxiety or psychological trauma, and this often takes the form of a state of amnesia, in which the person sets aside or forgets unconsciously something that his conscious mind cannot tolerate. He was then given a hypothetical question, covering the entire background and history of the defendant and the basic facts surrounding the defendant's theory of the case on trial. The psychiatrist answered the hypothetical question by testifying that it was possible that this hypothetical individual suffered an acute homosexual excitatory state at the time he shot the victim. The psychiatrist then testified that it was possible that a person suffering from this type of reaction an acute "homosexual panic" would be acting purely instinctively and conceivably without ability of self-control. Furthermore, on direct, the psychiatrist allowed that "homosexual panic" is not per se an illness, but is a symptom. On cross examination, he stated that "homosexual panic" is not recognized as a mental illness, nor is it included in psychiatric nomenclature, that it is not a mental defect recognized by psychiatric nomenclature and is merely a symptom of a psychiatric disturbance. At the culmination of his testimony defendant's psychiatrist stated that the person in the hypothetical, who was suffering from a state of acute "homosexual panic," was at the time of the act in question unable to conform, and unable to control the given impulse, but that this would be by reason of the possibility that he might have been undergoing a "homosexual panic" and would not be by reason of his suffering from a mental disease. He was unable to render an opinion whether Parisie suffered a mental disease or defect which caused him to lack substantial capacity to appreciate the criminality of his conduct.
In rebuttal, the prosecution called a psychiatrist who testified that Parisie was a psychopath and not suffering from schizophrenia or insipient schizophrenia. He further testified that an acute homosexual panic is not a mental defect or mental disease, but is a personal disturbance. He was of the opinion that this was not a homosexual panic since defendant was not a homosexual. He answered the hypothetical question by saying that the person described therein had sufficient capacity to comprehend the nature and consequences of his acts and that he was not insane and not suffering from any form of mental disease or mental defect. He also stated that "homosexual panic" is not recognized as either a mental disease or defect it is a personality disturbance.
• 1-4 The burden, of course, is upon the State to prove the capacity of the defendant to commit the offense charged. And the presumption in favor of sanity and mental capacity is always present until the defendant has presented sufficient evidence to overcome that presumption. There can be no question that defendant suffered from personality disorders, and even perhaps from all of the psychological and psychiatric debilities testified to by his expert witnesses. But none of it equated his mental suffering to either a "mental disease or mental defect," or indicated that his "capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law" was impaired by such, and the jury so found. The extensive and elongated testimony of psychological and psychiatric problems, as well as the results of psychological tests and personal history background, were all before the jury, by virtue of the correct and liberal permission by the court. It was a jury question. On the state of the evidence above recited we cannot at all say that it was sufficient to establish a mental disease or defect within the meaning of the statutory definition nor to create a reasonable doubt as to the sanity of the defendant. The jury's finding that the defendant here was sane cannot be construed as against the manifest weight of the evidence. People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702, 707.
We will now address ourselves to the specific issues raised on appeal in the same order as presented.
First: Change of venue. Defendant alleges that he was denied the right to a fair trial when the trial court erroneously refused a change of venue from the county. There was but one affidavit, that of defendant, which was presented in support of his motion. The court actually conducted several hearings upon this motion for venue change, after requesting defense counsel to furnish the court with copies of the alleged prejudicial news coverage. At the first hearing, the defense introduced 40 separate news articles as exhibits, and at the second hearing filed 79 additional exhibits and news releases. The defense called four witnesses from the news media to testify as to the authentication of the exhibits. The vast bulk of the exhibits appear to us to be no more than routine news items and coverage. It would appear from the record and arguments of defense counsel that they are also of that mind since they rely almost exclusively upon one coverage that reported the coroner's jury verdict that decedent died from wounds inflicted by .22 calibre bullets from a gun held by John Parisie, and other news reports that Parisie was involved in a jail break from the local county jail, when in fact such report was false. Parenthetically, we would point out that the content of both of these news items would only go to the question of guilt and when Parisie later admitted his guilt upon jury trial, such prejudice, if any existed, was meaningless. But even assuming that such reports were prejudicial to the defendant, were they sufficiently of a degree to prevent him from receiving a fair trial in Sangamon County and should the motion for change have been allowed?
This is no longer the day and age of a half day ride by horseback to the county seat. We do not live in a vacuum, but in a civilized world, and there is no place to hide from the media. Television and radio seek out that which was heretofore in a bygone age completely inaccessible. It would seem nigh on impossible in this present day to call a venire of prospective jurors that would be free from the "taint" of news coverage in a murder case. Indeed, we would venture to suggest that it is much more desirable to have a venire of people who are aware and cognizant of that which exists in their society than it is to have a panel of jurors with little acquaintanceship with their environment. As was noted in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, 756:
"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."
• 5-7 The Illinois position is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. (People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645, 650.) The granting of a motion for a change of venue from the county on grounds of prejudice of the inhabitants thereof rests in the sound discretion of the trial court. But this discretion may not be exercised arbitrarily and is subject to review in case it is abused. (People v. Allen, 413 Ill. 69, 107 N.E.2d 826, 828.) And it has been repeatedly held in Illinois that voir dire examination of prospective jurors is probably the most valuable means of determining bias or partiality among the venire in the typical or usual case where prejudicial pretrial publicity is alleged. People v. Kurtz, 37 Ill.2d 103, 224 N.E.2d 817, 820; People v. Black, 130 Ill. App.2d 996, 266 N.E.2d 458, 461.
• 8 The voir dire examination here was quite extensive as reflected from the 845 pages of the record before us. A total of 69 veniremen were called and examined. Of that number, the court excused 28, the prosecution used 12 peremptory challenges and the defense exercised 19 of its statutory total of 20. Those that were ultimately selected had either read or heard of the case. But under extensive examination by the court, prosecution and defense all of the jurors answered that they would indulge in the defendant's presumption of innocence throughout the trial, were open-minded, knew of no reason why they could not give both sides a fair trial, would require the State to meet its burden of proof beyond a reasonable doubt, would be fair and impartial, had no opinion as to the guilt or innocence of the defendant, and were of the same frame of mind that they would want a juror to be if they or their children were on trial. There is no showing whatever in this appeal, from either the briefs or the record, that any of these jurors had any impression, let alone opinion, as to the guilt of Parisie. And there is certainly no foundation to allege that the pretrial publicity prejudiced the jury against the defendant. A motion for change of venue came seven months after the crime, three months after the case had been reassigned (upon motion of defendant) to the trial judge and two months before the case was actually tried. It has been held that a sufficient time lapse between the news accounts and the trial itself may be considered as having dissipated any feeling of prejudice, whether real or imagined. People v. Berry, 37 Ill.2d 329, 226 N.E.2d 591, 593.
• 9 Predicated upon all of these factors, the record before us cannot substantiate error in the denial of the change of venue. There is utterly no showing that the trial judge acted out of bad motive, upon whim or abuse of his discretion. We believe that the jury finally selected to try Mr. Parisie represented a fair and impartial trier of the facts. The fact that defendant did not exhaust his peremptory challenges would suggest that defense counsel were of like opinion. People v. Black, supra, 266 N.E.2d 458, 461.
• 10 Second: Voir dire. Mr. Parisie next contends that the trial court improperly restricted defense counsel's voir dire examination by refusing to inquire on the subject of homosexuality. About two months before the trial a private attorney representing the family of the victim presented a motion in limine seeking to enjoin the defendant from making any adverse characterization of decedent as a homosexual without first showing materiality of the issue and its admissibility. Defense counsel conceded that it was necessary to show the materiality and relevancy of homosexuality, and that they "would be delighted" to do so but "out of the presence of the State's Attorney." The trial judge, of course, refused to hear any one-sided arguments from defense without the presence of the prosecution and rightly so, since even-handed justice would appear to dictate that we still apply our substantive law by adversary practice. To force a trial judge to conduct an ex parte and in camera hearing in a criminal prosecution and to make a fair decision with but one biased position before him places an intolerable yoke upon the shoulders of any magistrate. The court then ruled, "Nothing will be said on the subject matter of homosexuality involving the decedent and the defendant and counsel for both parties are instructed not to make any mention of it in public or in trial until admissibility is shown."
• 11 During the first day of voir dire the court itself asked the following question: "There may be some evidence in this case of homosexuality. If the evidence should show any person whose name comes up during the trial of this case was involved in acts of homosexuality, would that fact alone create prejudice or sympathy for that person?" (Parenthetically, it is noted from the record that no jurors were accepted on the first day of voir dire.) At the beginning of the second day of juror selection, the court ruled as follows out of the presence of the jury: "Because of the failure or refusal of defense counsel to explain to the court why they should ask questions regarding homosexuality, the court will not permit any further questions in this area until it is shown that the defendant will be prejudiced." Thereafter, defense counsel made no further argument whatever to justify a voir dire excursion into the realm of homosexuality, made no proposal to offer any proof and the matter there dropped. On the third day of voir dire the defense presented to the court an affidavit of one of the defendant's lawyers wherein he stated that three persons who were presently incarcerated (one in a Tennessee jail, another in an Illinois penitentiary and a third at the Illinois State Farm), if called to testify, would state that each, respectively, had homosexual relations with the decedent, knew decedent's reputation in the community was that of a homosexual, and that decedent had been observed in a "known homosexual hangout" holding hands with another male person. The affidavit was signed by defense counsel and alleged that it was based upon interviews conducted by an investigator. (The natural question that arises, of course, is why was not the affidavit executed by the prospective witnesses rather than defendant's lawyer?) At the time that this third-hand affidavit was furnished, the defense asked the court for a reconsideration of the matter of posing questions concerning homosexuality to the veniremen. To this the court said, "I don't think it is shown to be material or admissible yet * * *. You have to show the admissibility of the evidence on the subject about which you are going to ask the jury." Defense counsel rejoined, "We feel this is not a requirement." The court again denied the request and the subject of homosexuality was not mentioned at all during the remainder of the voir dire. It is patently apparent that the court properly placed upon the moving party the burden of showing relevancy, materiality and/or admissibility of such evidence. The defense utterly failed to sustain its proper burden and the court to our view ruled correctly under the circumstances and properly limited the voir dire on this subject.
• 12, 13 For us to hold that defendant was entitled to examine prospective jurors on any subject he felt pertinent without explaining the relevancy to the trial court defies logic and permits unbridled and unlimited safaris into nearly any area of human endeavor, regardless of its utter irrelevancy to the issues being tried. This is not the law in Illinois. The basic rule is as old as our system of justice: The scope and extent of voir dire examination rests within the sound discretion of the trial court, and is subject to reasonable limitations imposed by the presiding judge. Were this not so, an eternity would be required in certain cases to obtain an impartial jury of twelve peers. The case of People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325, contains a very excellent discussion of the history and purpose of voir dire examination and concludes that "There is nothing in the constitutional guarantee of the right to a trial by jury which prevents reasonable regulation of the manner in which jurors shall be selected." (161 N.E.2d 333) And that reasonable regulation is manifested in Supreme Court Rule 234, pursuant to that court's power to make rules governing the practice in Illinois trial courts.
Defendant further argues the efficacy of error in the restricted voir dire on the basis that he learned that one of the members of the jury impaneled had a homosexual relative. This matter was brought to the court's attention immediately after the People rested their case. Defense counsel renewed his earlier motion for mistrial presented during voir dire, and said to the court: "Since the time that the jury has been impaneled, I have learned through unimpeachable sources that one of the jurors, in fact has a homosexual relative and * * * our failure to discover this at the time of examining the jurors, we feel has prejudiced us in the trial of this case to such an extent as to ...