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People v. Myers

JUNE 12, 1974.




APPEAL from the Circuit Court of Livingston County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.


Defendant was convicted of deviate sexual assault upon the verdict of a jury. Sentence of 4 to 6 years was imposed. The offense occurred during a riot at the penitentiary in Pontiac.

As grounds for reversal defendant argues that the trial court erred in denying his request for a change of venue; that there was insufficient compliance with his motion for discovery and that there was a failure to prove guilt beyond a reasonable doubt.

We find no error in the denial of the motion for a change of place of trial. Such motion shall state facts showing the nature of the prejudice alleged and the evidence heard must show such prejudice on the part of the inhabitants of the county that defendant cannot receive a fair trial. Ill. Rev. Stat. 1971, ch. 38, par. 114-6.

The articles in the newspaper tendered with the motion were not inflammatory. The name of the defendant appeared only peripherally as one of the number of inmates who had been indicted. It cannot be said that he was the focus of any report.

• 1, 2 Each case is to be judged upon the fact of community prejudice. (People v. Gendron, 41 Ill.2d 351, 243 N.E.2d 208.) The record of voir dire examination provides a significant basis to show that absence of community prejudice which permits a fair trial. (People v. Torres, 54 Ill.2d 384, 297 N.E.2d 142.) Here, the defendant neither made a challenge for cause nor exercised a preemptory. The absence of challenge is significant in determing whether it was possible to select jurors free from bias. People v. Black, 52 Ill.2d 544, 288 N.E.2d 376.

• 3 Such a motion is subject to review as an act of discretion by the trial judge. (People v. Parisie, 5 Ill. App.3d 1009, 287 N.E.2d 310.) Upon review, the test is whether or not a denial of such motion for change was a clear abuse of the court's discretion. People v. Tillman, 4 Ill. App.3d 910, 282 N.E.2d 231.

Defendant does not point out any matter in the voir dire which suggests that the jurors were unable to consider the evidence presented impartially. With such facts, we cannot say that there was an abuse of discretion in denying the motion.

The trial court granted defendant's motion that police reports "be made available at the time of trial." On the day prior to trial, a supplemental discovery motion requested production of records and testimony from hearings asserted to have been held by the Board of Review in the penitentiary. No motion for a continuance was made by defendant at this time to permit the prosecution to comply with this request prior to trial.

The defense called an assistant warden, Harvey. In direct examination, the witness advised that the prison disciplinarian would probably have a record consisting of substantially verbatim reports of testimony taken from various witnesses who observed the defendant at or near the time of the alleged assault. It is apparent from the record that neither defense counsel nor the prosecution were aware of the existence of such records prior to this time.

Following the noon recess, the State's Attorney stated that he had made inquiry of the secretary of the prison warden and was advised that the file Harvey had described was separate from the segregation file requested by defense counsel the previous day. He further stated that he had no knowledge as to the existence of the documents prior to the testimony of Harvey, and that the warden, Petrilli, had delivered the file in question to the courtroom.

Petrilli, called by the defendant, stated that the investigation reports in his possession had been made within a few days after the offense charged, and that the documents were contained in the defendant's case record.

Although an objection was made that the prosecution had not sufficiently complied with the discovery requested on the previous day, no motion for a continuance was made and defense counsel advised that he had had time to read and examine the documents and was prepared to proceed with the trial.

• 4 Defendant argues that the prosecution did not comply with written motions for discovery as required in Supreme Court Rule 412, and, in the alternative, that the prosecution was under obligation to supply the material in its possession showing matters favorable to defendant under the rule in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. We cannot find a meritorious issue within the context of the facts presented. Defendant's argument that the prosecution refused to supply "prison reports" is founded essentially upon his interpretation of "police reports" as requested in his motion. The record shows that upon a reasonable specification, the prosecution responded as promptly as possible. The argument fails to point out any exculpatory matters relevant to the defense in the material supplied which would suggest prejudicial error. Defense counsel stated in the record that he had examined the documents produced ...

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