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People v. Fleming





APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 19, 1976.

Defendant was found guilty by a jury of two counts of aggravated battery and one of unlawful use of weapons. He was sentenced to terms of two to five years for each aggravated battery offense and one to five years on the charge of unlawful use of weapons (knowing possession of a shotgun with a barrel of less than 18 inches in length). On appeal, he contends that (1) the court erred in not allowing defense counsel to personally examine jurors during the voir dire examination; (2) a weapon seized during a warrantless search incident to his arrest should have been suppressed; (3) the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (4) the State improperly drew attention to the exercise of his fifth amendment privilege against self-incrimination; (5) he was convicted of two offenses of aggravated battery which arose from a single act; and (6) the mittimus does not reflect that the sentences were concurrent.

A pretrial suppression hearing was conducted to determine whether a shotgun and shells seized at the time of defendant's arrest were admissible. There was testimony from defendant and his brother, Veriest Fleming, that the police had approached the apartment where they lived with weapons drawn; that after being admitted by their sister, the police searched defendant and Veriest. At this time, defendant identified himself as the assailant, and Veriest then informed the police that the shotgun used by his brother in the shooting was under a mattress in Veriest's locked bedroom. There is a conflict in the testimony as to how the police obtained the key. Veriest said that the police took the key from his pocket during the search; however, a police officer testified that Veriest gave the key to the police after he told them the gun was in the bedroom under the mattress.

The trial court denied the motion to suppress for the reason that defendant lacked standing to object to the search, in view of the fact that the gun belonged to Veriest and was obtained from the latter's locked bedroom.

At trial, defendant did not deny that he shot the complaining witness, Calvin Thompson, twice with a shotgun, but he contended he did so in self-defense. He testified that he had confronted Thompson because of an incident two days prior to the shooting, involving defendant, his brother Veriest, and Thompson, in which the latter allegedly pistol-whipped Veriest and at the same time threatened defendant. Wishing to further discuss this incident with Thompson, but fearing for his safety, defendant brought a shotgun and waited for Thompson. When Thompson arrived, defendant testified he refused to talk and instead reached with his left hand for a gun, which defendant says was tucked in his waistband but was visible through his open jacket. Defendant then fired a shot which knocked Thompson to the ground and, while he was down, defendant shot him a second time when, though wounded, defendant says Thompson continued to reach for his gun.

In support of defendant's claim of self-defense, the boyfriend of defendant's mother testified that he saw someone take a gun from Thompson after the shooting. He also said, however, that Thompson was carrying clothes on his left arm. Veriest testified that before the shooting he had seen Thompson carrying clothes but that his left arm was free.

The seriousness of the incident two days prior, which allegedly led to the meeting with and the shooting of Thompson, was disputed by the State. The investigating officer testified that Veriest had informed him that Thompson had merely slapped him with his hand at the time of the incident and that no mention of a gun was made. Thompson admitted having an argument with Veriest a couple of days before the shooting but denied pistol-whipping him or that he said anything to defendant during the incident. Thompson also denied that he was carrying a gun when he was shot and stated that he was carrying clothes on both arms but that his jacket was buttoned.


• 1 Defendant first contends that the trial court's refusal to allow defense counsel to personally examine jurors during the voir dire denied him his right to a trial by a fair and impartial jury. He argues here, as he did below, that Supreme Court Rule 234 (Ill. Rev. Stat. 1971, ch. 110A, par. 234) *fn1 allows such a personal examination, and he cites People v. Willis, 26 Ill. App.3d 518, 325 N.E.2d 715, as authority for his interpretation of that Rule. Our reading of Willis, however, does not persuade us that the method used in the instant case requires a reversal. We initially note that the Willis court found other reversible error in defendant's conviction, and it considered the requirements of Rule 234 only because the case was being remanded for a new trial. After describing an examination of jurors essentially similar to that conducted in the instant case, the Willis court citing People v. Carruthers, 18 Ill. App.3d 255, 309 N.E.2d 659, said at page 527, "A reading of [Rule 234] makes it clear that it prohibits a total ban involving direct questioning of the prospective jurors by the parties [or] their attorneys." It then concluded its opinion by directing "the voir dire procedure utilized in this case not be repeated" on remand.

Given the reliance in Willis on People v. Carruthers, we find it useful to discuss the holding in that case. The Carruthers court, relying heavily on People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325, found that direct examination of jurors is not a necessity to guarantee a fair and impartial jury but a privilege preserved for the parties in the form of the supplemental questioning allowed by Rule 234. The Carruthers court concluded at pages 260-61:

"[I]t appears, under the authority of Lobb, that direct questioning of prospective jurors by the parties or their attorneys during voir dire examination is not to be totally prohibited. (See Street v. Finney (1973), 9 Ill. App.3d 638.)"

The Carruthers court, however, went on to say, in effect, that a prohibition on direct questioning would not constitute reversible error unless counsel was prevented from discovering possible bias or prejudice which would constitute a basis of challenge for cause, or that it interfered with an intelligent exercise of defendant's right of peremptory challenge.

We believe the facts in the instant case are analogous to the Carruthers situation and, from our review of the record, we are of the opinion that defendant has not established that he was prejudiced by the refusal to allow a personal interrogation of the jurors. (See People v. Turner, 27 Ill. App.3d 239, 326 N.E.2d 425.) Here, the trial judge permitted written questions and expressed his willingness to ask the jurors any questions submitted. Defendant does not contend that any suggested questions were not asked nor does the record indicate that he found it necessary to challenge any of the jurors. As a result, it cannot now be said that he was prejudiced to the extent that he was denied the right to a fair and impartial jury. In view thereof, we conclude that the refusal here to permit personal participation in the voir dire was not reversible error.

It should be noted, however, that we do not intend by this conclusion that attorney participation in the selection of jurors may be precluded in every situation. We think that the Rule, as indicated in Carruthers and Lobb, was intended to permit such participation, at least to a limited extent. We should point out that attorney interrogation of jurors has long been the practice in this State, and the legislature has provided for a continuation of this practice in a recent amendment of section 115-4 of the Code of Criminal Procedure (Public Act 79-1033, approved by the Governor on September 18, 1975, and effective October 1, 1975), which expressly provides that "Each opposing counsel has the right to conduct his own voir dire examination of each prospective juror * * *."

Defendant next assigns as error the denial of his motion to suppress the gun and shells seized during a warrantless search at the time of his arrest. Although both defendant and the State argued different theories on this point in the trial court, and although defendant in this court denies the seizure was justifiable either as a search incident to arrest or as a search to which consent had been given, the State now attempts to justify the seizure only on the alternative grounds that (1) defendant lacked standing to object to the search; or (2) assuming defendant had standing, there was consent to the search.

If consent to a search is given, all objections are waived. (United States v. Matlock, 415 U.S. 164, 39 L.Ed.2d 242, 94 S.Ct. 988; People v. Mathews, 406 Ill. 35, 92 N.E.2d 147.) However, consent must be given voluntarily and is invalid if obtained by coercion. (People v. McGurn, 341 Ill. 632, 173 N.E. 754.) Whether consent to a search has been given is a question of fact for the trial court, and where the evidence is conflicting, the reviewing court will ...

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