APPEAL from the Circuit Court of Kane County; the Hon. CHARLES
G. SEIDEL, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, Vincente Zamarano, was found guilty of murder and not guilty of attempt murder by a jury and was sentenced to a term of 20-40 years in the penitentiary.
Defendant raises the following issues on appeal:
(1) Did the trial court err in denying defendant's motion for a new trial based upon statements which were made by the State's Attorney in his opening statement and closing argument and which were not borne out in the testimony at trial?
(2) Did the trial court err in denying defendant's motion to dismiss the entire jury panel based upon the alleged prejudicial voir dire examination conducted by the State's Attorney?
(3) Did the court err in denying defendant's motion for a new trial based upon allegedly prejudicial written material which was not introduced into evidence during the trial and which was discovered in the jury room immediately following the return of the jury's verdict and a completion of the jury deliberations?
On Friday, November 5, 1971, at about 11:00 o'clock P.M., the defendant shot Jose Garcia in the lobby of the Guadalupano Club in downtown Elgin. Garcia was a foreman at the defendant's place of business, the Woodruff and Edwards Foundry in Elgin. At trial, defendant's defense was based on the theory that the defendant blundered onto Garcia, not expecting to see him in the lobby of the Guadalupano Club, at about 11:00 o'clock P.M. and then shot him in self defense. In June of 1971, a friend of the defendant was shot and killed at the foundry; no arrest was ever made. Defendant testified that Garcia had made threats against his life after the murder of his friend. The last threat came on the day of the shooting. Following the death of his friend the defendant commenced carrying a gun. Defendant also testified that he has seen Garcia carrying a gun on many occasions.
Defendant states that in both the opening statement and closing argument of the prosecution, the prosecution commented that the defendant had been to the Club earlier in the evening on the night in question. Defendant argues that the prosecution knew it could not introduce evidence to that effect, nor did the prosecution attempt to prove such comments beyond the questioning of the defendant on whether he had been to the Club earlier in the evening. Defendant contends that such conduct by the prosecution was an attempt to prejudice the jury against the defendant by improperly discrediting his theory of self defense.
After a careful examination of the record, we find, however, that the prosecution in its opening statement did not state that the defendant was at the Club earlier in the evening but merely commented that a witness who was about to testify had been there earlier. Additionally, the prosecution in its closing argument did not make the comment claimed by the defendant but only stated that the defendant knew where he could find Garcia. This latter comment was based on evidence introduced at trial to the effect that Garcia regularly worked at the Club on weekends, and that the defendant had been to the Club many times on weekends.
During voir dire the State questioned venireman H. Wesley Cox in the presence of the entire jury panel in the following manner:
"Q. The defendant, through his lawyer, for first time, after I talked to the first four jurors, for the first time here today indicates that self defense would be a defense, and * * *.
MR. RICHARDS: I object to that, your Honor. It has been filed with the court and absolutely is not true.
THE COURT: Objection sustained and strike the remark.
MR. RICHARDS: I would like to be heard on that ...