APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
J. ROMITI, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
The defendant, Thomas Blair, was arrested and charged with the murder of Clarence Welge. After a bench trial before the Hon. Philip J. Romiti in the circuit court of Cook County, defendant was found guilty and was sentenced to a term of not less than 60 nor more than 120 years.
Prior to trial, defendant moved the court below to dismiss the indictment returned against him by the January, 1970 Cook County grand jury on the grounds that systematic discrimination against various sectors of the population in the selection for grand jury service, and alleged noncompliance by Cook County's jury commissioners with the statutory provisions governing the selection process (Ill. Rev. Stat. 1969, ch. 78, par. 24 et seq.), had resulted in an illegal grand jury; therefore, defendant alleged, the indictment handed down by the January, 1970 grand jury was void.
Similar motions to dismiss with respect to other grand juries had been brought in several cases, to which defendant was not a party, before the Hon. George Dolezal. *fn1 An extensive hearing was conducted relative to the grand jury question in those cases. By stipulation between the State and counsel for defendant, the evidence compiled before Judge Dolezal was allowed to be introduced in the case at bar in support of, and in opposition to, defendant Blair's motion to dismiss. After having read the transcript of evidence, Judge Romiti, in the instant case, denied defendant's motion, concluding that the method of grand jury selection had not been so manifestly or purposefully discriminatory as to involve violations of substantial constitutional proportions.
On appeal, defendant presents three questions for our consideration: first, whether the trial court erred in denying defendant's motion to dismiss the indictment against him on the grounds that the grand jury which indicted him had been selected by unlawful and unconstitutional means; second, whether defendant, in the court below, was proven sane beyond a reasonable doubt, thus rebutting the affirmative defense of insanity interposed by defendant; and third, whether defendant is entitled to a new trial because he was denied a fair trial in the court below owing to what he claims were repeated "mistakes" made by his trial counsel.
The evidence adduced at trial by the State, in its pertinent portions, can be summarized as follows. Two of defendant's companions, Tyrone Jelks and Charles Flowers, testified, in substance, that they had accompanied defendant to a White Castle restaurant during the late evening hours of December 29, 1969; that while the three were seated at the counter in the restaurant, an argument ensued between defendant and the victim, Clarence Welge, a white, 55-year-old man; and that, according to Flowers, defendant said to the victim, who was seated across the counter, "What are you staring at?" The victim replied to the effect that he had come into the restaurant to get something to eat. Defendant, a black, 22-year-old man, then rose from his seat, approached to within a foot of the victim, and the two exchanged further words. Welge grabbed defendant by the coat collar and held him, and, as he was so doing, defendant reached into his coat pocket, withdrew a pistol, and shot Welge in the left side, causing the victim to fall to one knee. Defendant then fired another shot at the victim, and, thereupon, Jelks, Flowers, and defendant left the restaurant.
Mrs. Sharon Demchuck, a waitress at the restaurant who had just completed her work shift, testified that as she entered the main section of the restaurant from a downstairs area, she saw the victim on his knees and that defendant was standing over him; that defendant and the victim were the only persons in that particular section of the restaurant; that she observed defendant leave the restaurant through a door which led to a parking lot and that he proceeded to enter an auto located in the lot; and that she left the restaurant and asked Charles Mosier, who was exiting his auto in the lot, to take down the license number of the auto she had seen defendant enter, which Mosier did.
Charles Mosier testified, in part, that he had observed a man entering an auto in the White Castle parking lot and that, upon the request of Mrs. Demchuck, he took down the auto's license number.
Officer Charles Gunn, a member of the Maywood, Illinois police department, testified, in part, that during the early morning hours of December 30, 1969, he received a police radio dispatch which gave the description and license number of an auto that carried persons who had recently been involved in a shooting; that he later observed the suspect vehicle in traffic, followed the vehicle until it came to a stop and parked, and thereupon, along with other police officers, approached the three occupants of the auto, Tyrone Jelks, Charles Flowers, and defendant, after they had exited the auto; that, after having informed the three that they were wanted in connection with an investigation of a shooting, he and defendant began scuffling; that, during the scuffle with defendant, Officer Gunn observed a pistol fall from defendant's person; and that Officer Gunn seized the pistol from the ground and subsequently sent it to the crime laboratory. It was stipulated between counsel for the defense and the State that the gun seized by Officer Gunn was the same weapon which had fired the bullets removed from the victim's, Clarence Welge's, body.
In support of his affirmative defense of insanity, defendant adduced evidence which can be summarized as follows. Defendant's mother, Mrs. Edith Mohorn, testified, inter alia, that when defendant was seven or eight years of age, he was involved in an auto accident and that when she observed him in the hospital after the accident, defendant was in a semi-coma; that throughout the ensuing years, defendant had behavior problems, which included fighting in school on the spur of the moment; that defendant's fighting resulted in his being placed in reformatories, and, on one occasion which involved a fight with a police officer, the fighting resulted in his being sent to jail; that defendant complained of intermittent headaches over the years, which Mrs. Mohorn treated with aspirin; that although she sought treatment for the injury which resulted from the car accident, she was unable to obtain any; that defendant had been expelled from school a number of times; that defendant had violent fights at home with his brothers; and that when she came to see defendant after he had been arrested for the shooting at the White Castle restaurant, defendant appeared to her to be incoherent.
Defendant's former grammar school principal, Mr. Hamilton, testified that defendant had been a disciplinary problem in school. The Rev. Claude Porter, the director of a community group in Maywood, Illinois, testified that defendant had worked for him in Maywood and described defendant as being subject to explosive outbursts. Other lay witnesses, including members of defendant's immediate family, testified to various other instances of violent behavior and displays of bad temper which defendant had engaged in throughout the years they had known defendant.
Thereafter, in the court below, expert witnesses were called to testify with respect to defendant's mental condition; their testimony will be summarized as part of our resolution of that issue in point II of this opinion.
The first issue presented for review is whether the court below erred in denying defendant's motion to dismiss the indictment against him on the grounds that the January, 1970 grand jury which had indicted him had been selected by unlawful and unconstitutional means. To reiterate, the evidence presented before the trial court, both in support of defendant's motion and in opposition to it, was the same as that adduced relative to similar motions made on behalf of several defendants in other cases, in the circuit court of Cook County, regarding the selection of grand juries which had indicted the respective defendants. In the instant case, the trial court, after reviewing the voluminous evidence, concluded that the method of grand jury selection had not been so purposefully discriminatory as to involve violations of substantial constitutional proportions. Thus, the trial court refused to dismiss the indictment against the defendant Blair.
Specifically, it is defendant's seminal contention that the grand jury which indicted him was illegal owing to what he claims was unjustifiable under-representation of Negroes, Latins, women, young adults, and poor people. In support of this argument, defendant calls our attention to the Fifth and Fourteenth Amendments to the United States Constitution, which forbid discrimination on the basis of race, sex, age, or income in the selection of grand or petit juries, or any discrimination resulting in the partial exclusion or under-representation of any identifiable segment of the community from which jurors are to be chosen.
Furthermore, defendant asserts, certain practices of the Cook County jury commissioners enhance the under-representation on grand juries of certain groups in the general population. He points specifically to these practices: the exclusive use of registered voter lists as the source of prospective jurors; the daily fee of ten dollars paid by the County for jury service; the failure of the commissioners to maintain jury lists; the variance in the methods used to select petit as opposed to grand jurors; and certain criteria individually applied by the commissioners in the selection of grand jurors.
We note at the outset of our analysis that in the record of evidence submitted on this issue to Judge Romiti in the court below the same record we have before us now there is a definite paucity of evidence with respect to the composition and selection of the January, 1970 Cook County grand jury, the grand jury which indicted the defendant in the case at bar. None of the grand jurors who served thereon were called as witnesses either before Judge Romiti or before Judge Dolezal in the prolonged hearing on the issue of improper grand jury selection in cases involving several different defendants. While much of the evidence is highly complicated, demonstrative, and statistical, the record filed in this court contains none of the nearly twoscore exhibits which were either introduced by the defense before Judge Dolezal and accepted into evidence, or which were introduced and rejected. We can, however, at times, glean from the transcript of colloquy between court and counsel some of the particulars which the exhibits reflected; but we are hard put to do so regularly.
In our reading of the record, and the abstract of same provided by counsel, we found references to the following defense exhibits without the particular exhibits to accompany them which could have peculiar significance in relation to the composition of the January, 1970 grand jury: Defense Exhibit No. 38, which purported to be a photograph of the January, 1970 Cook County grand jury; Defense Exhibit No. 13, entitled "Stipulation To Accuracy of 1970 Grand Jury List," which purported to fully and accurately describe the names, ages, occupations, business or residential addresses of all persons whose names were drawn on December 1, 1969, for regular or supplemental grand jury service commencing January 5, 1970; and Defense Exhibit No. 14, entitled "Stipulation To Testimony of Certain Grand Jurors," which reflected that one Jewel Spencer had served on the January, 1970 grand jury and that there were three Negroes serving on that grand jury.
The evidence submitted with respect to defendant's motion to dismiss the indictment reveals that several former grand jurors, all of whom had served on various Cook County grand juries during the year of 1969, were called as defense witnesses to testify regarding their grand jury experiences. Because these witness were asked substantially the same questions during their respective appearances, we will summarize their testimony in a collective fashion, drawing important distinctions and noting conflicts therein as we proceed.
All testified that they had served on grand juries during 1969, and that prior to their service, they had each been summoned to an interview with a Cook County jury commissioner. In response to the question of how many Negroes sat on the respective grand juries upon which they served, the witnesses responded, variously, that none, one, two, or four Negroes sat on the juries.
Regarding the interviews they had with Cook County jury commissioners, the witnesses testified that the interviews lasted anywhere from two to 30 minutes. During the interviews, the witnesses were asked, inter alia, these questions, to which they responded either yes or no, or gave a more amplified answer: whether jury service (that is, jury service generally; the commissioners did not specify grand jury service) would be a hardship to them; whether they had a preference as to the time of year they might serve; whether they favored capital punishment; whether (this, in the case of one witness) he had ever been arrested; and general questions regarding their addresses, ages, occupations, and so forth.
The record relative to defendant's motion to dismiss further reveals that Cook County's three jury commissioners at the time, Herbert Lewis, Roy C. Olin, and Joseph Robichaux (a black person), were called to testify, Lewis as a witness for the defense, Olin and Robichaux as witnesses for the State.
Lewis *fn2 testified that he had been a jury commissioner in Cook County since July, 1953; that poll sheets listing registered voters living on certain streets in designated electoral locations were used by the commissioners to determine which persons in the County were to receive jury questionnaires; that a random "key number" any numeral was provided each year by Judge Harold G. Ward, presiding judge, law division, circuit court of Cook County, and was utilized as a reference point from which to count down the names on the voter lists in order to select prospective jurors; that every two years, the jury commissioners would receive new poll sheets from the City of Chicago and Cook County election commissioners, which represented one poll sheet for each precinct in Cook County; that "distant numbers" were used to count a certain number of names after the "key number" which allowed the commissioners to arrive at the names of prospective jurors; that after these names were selected, questionnaires approximately 21,000 per month and 400,000 over a two year period were sent out of those selected; that after the questionnaires had been returned, a "record book sheet" would be used to indicate those persons who had been selected for jury service, those who had been excused, and those from whom no questionnaire had been received; and that it was impossible to call anyone for jury duty from whom a questionnaire had not been received.
Lewis further testified that after the questionnaires had been returned, they would be date-stamped and divided equally among the three commissioners, who would then, individually, review his share to determine whether a person would be considered for jury service or excused "for good cause shown" based upon the answer to questions propounded on the returned questionnaire; that he would use his own discretion in deciding who was eligible for jury service and who was to be excused; that his decision to accept a person for jury duty was based solely on the answers to the questions on the questionnaire; that, in addition to excusing those who would be subject to the legal exemptions listed on the back of the returned questionnaire (see Ill. Rev. Stat. 1969, ch. 78, par. 4), he would excuse from service the following persons: women with children 13 years of age or less, who could not find someone to care for them; women who stated they were ill and under a doctor's care; women who stated they cared for invalids in need of constant care; women whose husbands were ill and who worked part time; persons who stated that they would be leaving the State within a short period of time; ...