APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendant, Jose Torres, was convicted of murder following a jury trial in the circuit court of Cook County, and was sentenced to death. He has appealed directly to this court from that conviction, pursuant to Supreme Court Rule 603. 43 Ill.2d R. 603.
On February 27, 1967, at approximately 1 A.M., Patricia Heinen was stabbed to death while walking in downtown Chicago. The next day, at approximately 10:30 P.M., police officers Learas and DiLeonardi arrested defendant. They took him to police headquarters where he was advised of his constitutional rights by Captain Flanagan in the presence of Learas and DiLeonardi. In response to the warnings, the defendant stated, "I know about lawyers." Flanagan then briefly questioned the defendant about the stabbing, but Torres did not admit anything.
Flanagan and DiLeonardi then left the interrogation room. Learas again advised defendant of his constitutional rights, this time in Spanish. Defendant was then asked by Learas if he understood his rights, and he responded that he did. A detailed confession followed. Later, defendant confessed to Captain Flanagan, and a subsequent confession was also given to an assistant State's Attorney who prior to his interrogation again advised defendant of his constitutional rights. Torres refused, however, to sign the transcribed statement which contained this third confession.
The nature and location of the crime generated considerable publicity. The news media gave it extensive coverage during the days immediately following the stabbing, as well as during the inquest into the victim's death conducted less than two weeks later. Most of these articles were printed on the inner pages of newspapers.
Between the time of the inquest and the trial, the publicity abated. While additional news stories appeared as the date of the trial approached, none was placed on the front pages of newspapers, and most dealt purely with the factual accounts of the legal proceedings prior to the trial.
The defendant's first three contentions concern the publicity given the case by Chicago news media. He initially contends that his motion for a change of place of trial made pursuant to section 114-6 of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, ch. 38, par. 114-6) was wrongfully denied. The motion alleged that pretrial publicity had so prejudiced the inhabitants of Cook County against Torres that he could not receive a fair and impartial trial as guaranteed to him under the due-process clauses of the State and Federal constitutions.
At the hearing on the motion the defendant introduced as exhibits several articles from Chicago newspapers relating to the crime and also evidence that the identifying witnesses had appeared on television and told of identifying the defendant. At the conclusion of the hearing the court found that the publicity was not so pervasive as to create in a metropolitan area as large as Cook County a prejudice against the defendant such as would make it impossible for him to receive a fair trial.
The publicity within the first 10 days after the commission of the offense was the most intensive, and the nature of the publicity at that time was less factual and more likely to prejudice the defendant than was the later publicity. During that period news articles with headings such as "Admits Loop Murder of Woman"; "Admits Killing Clerk, Charged With Murder" and "Purse Thief Held as Girl Killer" were printed in the Chicago daily newspapers. Also, parts of the defendant's confession which had been read at the coroner's inquest were printed by the news media. Most of this material was printed on the inner pages of the papers. Thereafter, the publicity abated until proceedings were had in court relating to motions filed in the case. The nature of the publicity concerning these court proceedings was more objective. When the court denied the defendant's motion to suppress his confession the caption on the news account concerning the court's order read "Confession Okayed in Loop Murder."
The judge did not have the benefit of the voir dire examination at the time he ruled on the motion for the change of venue; however, now, not only do we have the evidence of the nature and the intensity of the publicity, but we are able to judge the effect of the publicity as reflected in the attitude of the prospective jurors revealed on the voir dire examination. "The examination of prospective jurors on voir dire is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among persons summoned as jurors." People v. Kurtz, 37 Ill.2d 103, at 108.
The prospective jurors on examination did not reflect a deep-seated prejudice against the defendant. Although about 42 jurors were excused for cause, 32 of this number were excused because of their opposition to the death penalty. Several of the prospective jurors had not heard of the occurrence, and most of the ones that had heard of the case recalled it only in a general way. Approximately 10 jurors were excused because they felt that they could have been influenced by the publicity. The nature and the intensity of the publicity and its effect as revealed by the voir dire examination are not comparable to the situations which existed in the cases relied upon by the defendant. See Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639; Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507.
Some of the defendant's criticism of the conduct of the press in this case is justified. We fully support the public's "right to know" and the right of the press to fulfill the function of informing the public. We are also gravely concerned, however, that the defendant receive a trial by a fair and impartial jury. We do not think that either purpose is advanced by conducting a mock trial through the media with witnesses appearing on television to identify the defendant and with excerpts from the defendant's confession being printed in the papers before the trial. Fortunately, the voir dire examination indicated that the impact of this publicity in this case did not prejudice a sufficiently large segment of the population of the county to make it impossible to select an impartial jury. We can visualize circumstances where this type of reporting could seriously affect the defendant's right to a trial by jury as guaranteed by the sixth and fourteenth amendments.
We note that the defendant's counsel did not challenge for cause a single member of the jury sworn to try the case, and, in fact, the examination revealed no reason to do so. This failure to challenge any of the jurors for cause is strong evidence that counsel was convinced the jurors were not biased and had not formed a conviction of the defendant's guilt. Beck v. Washington, 369 U.S. 541, 8 L.Ed.2d 98, 82 S.Ct. 955; People v. Speck, 41 Ill.2d 177.
The proof of potentially harmful publicity within a community does not alone establish proof of community prejudice as each case must be judged on its own facts. (People v. Gendron, 41 Ill.2d 351, 354.) Our examination of the evidence relating to the publicity and its effect as revealed by the voir dire examination convinces us that the defendant received a trial by a fair and impartial jury. The jurors that had been exposed to the publicity stated that they had not formed an opinion as to the defendant's guilt and that they would not be influenced by what they had heard and read. There is no indication that the general community attitude was so prejudiced against the defendant as to cause us to reject these answers. Beck v. Washington, 369 U.S. at 557, 8 L.Ed.2d at 112.
The defendant next contends that the trial court erred in denying his motion for a continuance to abate the impact of the pretrial publicity. We find no merit in this contention for the same reason which impelled us to find no ...