APPEAL from the Circuit Court of Warren County; the Hon. U.S.
COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Kenneth J. Hartness appeals from a conviction of the crime of burglary, following a jury trial, and from a consequent sentence of 4 to 12 years in the penitentiary.
From the record it appears that on or about June 24, 1974, Jerry Knowles, his wife, daughter and a son, resided in a house located on Highway 34, 6 miles west of Galesburg, Illinois. The house in which the Knowles lived was owned by Mr. and Mrs. Graham. On July 24, 1974, Knowles, his wife and daughter, left their home for a short vacation. The Knowles' son, Kenneth Knowles, did not accompany the family on the vacation but stayed with his grandmother in Galesburg. Before Jerry Knowles and his wife and daughter had left the house, the family locked all the doors. The front windows of the house were left open one-half inch but were covered by screens which were in good condition.
On July 25, 1974, Mrs. Graham was painting at the Knowles residence from 9 a.m. until about 12:50 p.m. She returned to the house at about 2:30 p.m. on that day, and upon her return noticed that the screen from one of the front windows was down and that the front window was completely closed. She then talked to Kenneth Knowles and Anita Wade, a relative of the Knowles. When Kenneth Knowles arrived at the house, he noticed that the screen from one of the front windows was laying in the bushes near the window and discovered that the back door of the house was unlocked. The son, Kenneth, did not notice if anything was missing from the house at the time. He notified the sheriff of Warren County of the situation at the house, however.
Paul Rude, a State patrol officer, stopped for lunch at a truck stop near Galesburg at 1:05 p.m. on July 25, 1974. Defendant Hartness was seated in the truck stop when Officer Rude arrived and was still at the truck stop when the officer left at 1:24 p.m. In the officer's opinion, defendant Hartness was drunk while at the truck stop. This truck stop was located 5 miles from the Knowles house. Officer Rude saw defendant Hartness at 3:18 p.m. on the same day. At that time, he took defendant Hartness into custody for causes not related to the instant case. Officer Rude then delivered defendant to the custody of Deputy Sheriff Hart in Warren County. Deputy Sheriff Hart returned to Warren County with defendant at about 4 p.m. on July 25, 1974. Defendant was then "booked" and searched. The search produced an engraved watch, $7.63 in change and in excess of $220 in currency from the possession of defendant. Defendant still appeared to be drunk at the time of the search. After defendant had been booked, Warren County Sheriff Watkins had received a report concerning a possible burglary at the Knowles home. Sheriff Watkins then went to the Knowles residence, but no one was home.
The Knowles family returned to the home on July 26, 1974. At that time, Jerry Knowles discovered that an engraved watch and some change was missing from the house. On July 26, 1974, Sheriff Watkins toured the Knowles home also. Mr. Knowles identified the watch taken from the possession of the defendant Hartness as a watch missing from the Knowles home. The watch was engraved on the back with the following legend: "J.W. Knowles. In appreciation of 15 years of loyalty and work well done. Gale Products. 1970."
Defendant was subsequently charged with burglary and aggravated battery. Prior to the trial, the trial court granted defendant's motion to sever these two causes as unrelated. The Warren County public defender was appointed to represent defendant Hartness on September 9, 1974. Following a preliminary hearing on September 25, 1974, on September 30, 1974, defendant presented two motions to the court. The first of such motions requested that the court order a psychiatric examination of defendant, which was allowed by an order signed October 1, 1974. The defendant's second motion asked for a substitution of judges. On October 10, 1974, the chief judge of the circuit assigned Judge Kloster to hear this cause, and on October 17, 1974, Judge Klukos signed the order for substitution of judges as requested by defendant.
An indictment was returned by the grand jury on October 7, 1974, which charged defendant with burglary. A hearing was scheduled for October 15 but defendant was absent from court on that date, since he was undergoing the requested psychiatric examination. On November 12, 1974, defendant's attorney acknowledged receipt of the psychiatric report, and defendant thereafter entered a plea of not guilty to the charge of burglary.
On December 17, 1974, defendant filed a motion for discharge, alleging that he had been incarcerated since his arrest on July 25, 1974, and that he had not been brought to trial within 120 days of that date. On December 19, 1974, the court denied defendant's motion for discharge. The trial court found that defendant's motion for substitution of judges "caused delay, however slight." The trial court's order noted: "The Court cannot from the record find an actual delay, but basing its decision upon the fact that the motion for substitution of judges in and of itself caused a delay, however slight, that would toll the original four-month period and cause the State to commence anew from the date of the filing of the motion."
At the inception of the trial on December 23, 1974, the trial court admonished all jurors that they were not to discuss the case with anyone and that they were to decide the case only on the evidence presented in court and that they were not to listen to any reports on radio or television involving the case. The court was then adjourned until January 2, 1975.
Before the actual trial commenced, defendant moved to exclude all witnesses from the courtroom. The State's Attorney, in speaking to the motion, advised the court that the prosecutor wanted the sheriff to remain present, and that the sheriff would be a witness. The defense counsel asked that the sheriff be also excluded since he would be testifying, and that would be prejudicial to the defendant. The trial court then determined that he would permit the sheriff to remain in the courtroom to aid the State's Attorney, but would exclude all other witnesses. As a result, all witnesses were excluded with the exception of the Warren County sheriff. He was later called as a witness by both the State and the defense. Sheriff Watkins was the only witness called by the defense.
While Sheriff Watkins was testifying as a State's witness, he spoke of speaking to Lillian Derry, sister of defendant, on July 25, 1974, concerning "several investigations going on at that time." The sheriff questioned Miss Derry concerning the time of defendant's visit to Miss Derry on July 25, 1976, but asked her nothing else at that time "in regard to this case." On cross-examination, the sheriff was asked whether he was present when defendant was searched. Sheriff Watkins responded that he was present when the defendant "was searched pertaining to another case." On redirect examination, the sheriff was asked whether anything else he had said at the preliminary hearing was different from what he told the jury at the trial. The sheriff responded, "Not pertaining to this case."
The jury was excused for the day without additional admonition and the following morning defendant moved for a mistrial based on prejudicial publicity. The Monmouth Review Atlas, published as an evening paper on January 2, 1975, carried an article concerning the trial. The article named the jurors, the attorneys, and the judge. The testimony given at the trial was outlined in the article. The article noted the aggravated battery charge pending against defendant and described the facts surrounding defendant's arrest. The article further noted that defendant had a prior criminal record, was on parole at the time of his arrest, and had been in a mental hospital. The trial court denied the motion for mistrial and ruled that the jury had been admonished to ignore outside publicity and that the admonition was "the thing we will just have to stand on here" even though it had been made at the beginning of the trial and not later.
The trial then continued with testimony from Sheriff Watkins as a witness for the defense. The sheriff testified that no comparisons were made between defendant's fingerprints and fingerprints found at the Knowles' home. Sheriff Watkins testified that no one saw defendant at the Knowles' home but volunteered that he had spoken to people who saw defendant in the area. On cross-examination, the sheriff explained that two people saw defendant and four or five people saw defendant's car. On redirect examination the defense elicited that "in connection with this investigation" no one had described a 1964 Rambler (the type of automobile owned by defendant) as being in the area of the Knowles' home and no one had identified defendant. The State, on recross, asked whether anyone had "identified" defendant's vehicle. Sheriff Watkins replied affirmatively. At this time defense counsel wished to pursue the sheriff's use of the word "identify." The trial judge noted the scope of the examination which had preceded and indicated he had a general rule to limit questioning beyond recross-examination. The trial court then stated:
"Gentlemen, you know the rules of the Court as to examination of witnesses. Each of you have an opportunity for cross examination and recross examination and direct examination and redirect examination. This Court is going to adhere to the rules because I think the purpose for that rule is to facilitate this trial, and any other trial, because without that rule you could go on indefinitely. For that reason I am going to deny the request * * *."
Thereafter, during closing arguments, the State's Attorney described the idea of a defendant's presumption of innocence being overcome by proof beyond a reasonable doubt. He compared the trial process to a set of scales and the prosecutor said: "When the testimony gets so heavy on one side it causes it to go down, that presumption of innocence is no longer with the defendant." He also addressed the concept that, if there were no reasonable explanation of defendant's possession of recently stolen property, then the jury could presume defendant guilty of burglary or theft. The State's Attorney said on this subject: "There is no reasonable explanation as to how that watch got out of the house. We know where it was when Mr. Hartness was arrested. There is no ...