APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
On February 10, 1972, a sporting goods store in Berwyn was the scene of an armed robbery during which the proprietor was shot to death. Arthur Peters (defendant) was indicted for armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2) and murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1) and for attempt murder (Ill. Rev. Stat. 1971, ch. 38, par. 8-4) of two police officers at the scene of the robbery. After a jury trial, the defendant was found guilty of armed robbery, murder and of both attempt murders. He was sentenced to 100 to 300 years for murder; a concurrent sentence of 10 to 20 years for armed robbery; and concurrent sentences of 10 to 20 years for each attempt murder. As will later be discussed, there is an inconsistency between the common law record and the report of proceedings as to whether the last two sentences are to be served concurrently with or consecutively to the first two sentences. The defendant has appealed.
The defendant does not raise any point regarding the sufficiency of the evidence, except his sanity when the offenses were committed. Our review of the record indicates that there was ample evidence to sustain all of the convictions. Therefore, we see no need to discuss the facts in detail, but will summarize them at this point. If discussion of the defendant's contentions requires more detailed facts, we will state those facts as necessary.
On February 10, 1972, a Berwyn police officer received a radio message and proceeded to the sporting goods store. He found the door locked but saw the owner, Frank Posejpal, in the store. He was handing boxes to some person who was not visible. As the officer turned away from the store, he heard two shots. He turned and saw the defendant unlock the door. The officer drew his gun and entered the store for a moment, but left when the defendant pointed a small caliber automatic pistol at him. The officer heard additional shots fired from in back of the store. From behind his car, he could see defendant inside. Another officer had arrived and was directed to the rear of the store. There he found three men and an automobile with the motor running and the trunk open. He identified defendant's son (co-defendant John Peters) as the person seated behind the wheel. The younger of the other two men was carrying boxes of ammunition to the car. The third man, who was walking behind the other, was later found to be carrying a 9-millimeter automatic pistol. These three men attempted to flee but were all arrested. During this process two shots were fired at the officer from inside the store. The trunk of the car contained a quantity of shotguns, pistols and ammunition, all identified as having been taken from the store.
A number of other police officers arrived. They used a loudspeaker to tell the defendant to surrender. They also exchanged gunshots with the defendant, who remained in the store. Finally, they fired tear gas into the store. After additional calls from the police, the defendant threw a pellet gun out of the front door and surrendered. While he was in the store, the defendant had called a reporter for a local radio station and expressed his desire to surrender to the police. The reporter called the police station in an effort to accomplish this.
Upon entering the store, the police found the owner dead of a gunshot wound. There was no one else inside. A search by the police disclosed a hidden .25-caliber automatic pistol wedged in between a shelf and the rear wall. The evidence showed that this gun and the 9-millimeter pistol carried by one of the men arrested were both purchased from the sporting goods store by a third party and turned over to defendant. Expert testimony established that the store owner was killed by one bullet which entered the back of his neck at the left side. In the opinion of the expert, the gun was held about one foot from the victim. Ballistics testimony showed that the fatal bullet came from the .25-caliber pistol found hidden in the store. Two .25-caliber shell casings fired from this same gun were found in defendant's home.
Defendant testified that he had no recollection of the entire incident. He stated that he had drunk two quarts of vodka at a friend's house at 4 o'clock that morning. At that time he took about 300 milligrams of drugs per day. On rebuttal, this friend testified that defendant came to her home about 8 a.m. that day and asked to borrow her car. He did not drink two quarts of vodka or take pills or drugs in her presence that day. In her opinion, he did not appear intoxicated then and was not under the influence of any type of drugs. He drove her to work that day in her car. She observed nothing unusual about his driving or his behavior. He spoke coherently to her.
Defendant's son, 18 years old at the time of trial, testified that defendant came to his home at about 9:30 a.m. In his opinion his father was then intoxicated. He drove his father, a friend and the latter's son to two bars. The two older men spent about half an hour in each place. The younger men waited in the car. The four men then drove to the home occupied by the son and his mother. The son then drove the car to the front of the sporting goods store where the two older men entered. The son, with the other young man in the car, drove to the rear of the store. In sum, in our opinion the evidence is patently overwhelming beyond reasonable doubt to prove guilt of the defendant, subject only to the issue of his sanity which remains to be considered.
The defendant contends that the trial court abused its discretion by refusing to grant a mistrial after an unauthorized approach to the jury; the trial court's refusal to grant defendant a change of venue due to pretrial publicity resulted in a trial before a prejudiced jury; the trial court erred by refusing to allow defense counsel to directly question prospective jurors; the trial court erred by refusing to excuse for cause five jurors who showed prima facie likelihood of bias; the State failed to prove defendant's sanity beyond a reasonable doubt; and the consecutive sentence imposed on defendant was excessive under the Unified Code of Corrections.
The State responds that it met its burden of proving defendant's sanity beyond a reasonable doubt; the pretrial publicity did not require a change of venue; the court's examination of prospective jurors did not prejudice defendant; the trial court properly denied challenges for cause to jurors who did not show any interest, bias or prejudice; the court properly denied defendant's motion for a mistrial because the defendant was not prejudiced by the unauthorized approach to the jury; and defendant's sentence should be modified so that the terms run concurrently.
Defendant's first contention is concerned with an alleged unauthorized approach to the jury. One day during the trial, at the close of all the evidence and immediately after a lunch recess, the court was informed by a deputy sheriff that, as the jury was passing across a parking lot to its lunchroom, two young men sitting in front of the County Jail spoke to them and repeated the words, "not guilty" three times. The other deputy sheriff escorting the jury heard one of the men say, "Not guilty, not guilty and I know one of the women on the jury." The two men were brought before the court but denied that this incident had occurred. The court then had the jurors brought into open court and, by collective questioning, ascertained that six of the individual jurors had heard comments by the two men. The court asked the jurors collectively if there was anything about the incident that affected them in any manner, one way or another, and if they heard anything else and received negative answers. One juror remarked that he paid no attention and another juror said that he had not seen the two men. The court then instructed the jury that the incident had nothing to do with the case.
Counsel for the defendant made a motion for mistrial which was denied. Defendant now urges that the court should have polled the members of the jury individually as to whether they heard the comments or were prejudiced. No motion was made to this effect nor was this procedure suggested to the court.
• 1 Counsel for defendant concede here that the trial court has broad discretion in determining whether a mistrial will be declared. In support of this statement they cite People v. D'Argento, 106 Ill. App.2d 36, 41, 245 N.E.2d 501. This decision involved a request for mistrial by defense counsel based upon the fact that a jurior told the court that he had received a telephone communication from an anonymous caller who said, "I want you to find those fellows guilty." The juror advised the court that this incident would have no effect on his impartiality. This court stated the established and accepted principle that "an unauthorized communication to a juror does not, of itself, render a fair trial by an impartial jury impossible. It is necessary to show that the unauthorized communication in some way prejudiced the defendant." (106 Ill. App.2d 36, 40.) In support of this principle this court cited People v. Berry, 18 Ill.2d 453, 459, 165 N.E.2d 257, cert. denied, 364 U.S. 846, and People v. Williams, 38 Ill.2d 115, 126, 230 N.E.2d 224.
The defendant actually cites no Illinois authority to the contrary other than People v. Tilley, 406 Ill. 398, 94 N.E.2d 328. There, an intoxicated sister-in-law of one of the jurors approached them in a restaurant. She was prevented by the bailiff from communication. She then made remarks in the presence of the entire jury including the statement, "If I was on that jury I would free him." We note in Tilley that other charges of irregularities in the handling of the jury were made. In addition, Tilley reversed the conviction not so much because of the incident in the restaurant but because of the cumulative effect of additional trial errors which the court discussed and found prejudicial so that the ...