APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant Michael Brumfield was convicted of burglary after a jury trial in the Circuit Court of Will County and received a two to ten year prison term. The sole issue on appeal is whether the trial court committed reversible error by refusing defense counsel the opportunity to directly examine prospective jurors.
The trial court informed the parties prior to selecting a jury that it would not permit them to directly question prospective jurors based on its authority under amended Supreme Court Rule 234 (Ill. Rev. Stat. 1975, ch. 110A, par. 234). The record in this case does not reveal that counsel for the defendant submitted any questions to the judge for him to ask the jurors, nor does the record reveal whether or not the defendant exhausted his peremptory challenges. Amended Rule 234, which became effective on July 1, 1975, states that:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions."
Rule 234 is made applicable to criminal cases by Supreme Court Rule 431 (Ill. Rev. Stat. 1975, ch. 110A, par. 431).
Defense counsel asserted a right to directly examine jurors under amended section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)), but his motion was denied. Amended section 115-4(f), which became effective on October 1, 1975, provides in part that:
"* * * Each opposing counsel has the right to conduct his own voir dire examination of each prospective juror for the purpose of determining such juror's qualifications, bias and prejudice, or freedom therefrom."
Since it is evident that a conflict exists between Rule 234 and the statute, the issue thus presented raises some interesting questions about the respective constitutional powers of the legislature and judiciary to regulate trial practice. The defendant contends that amended section 115-4(f) reflects a proper exercise of legislative power which supersedes the conflicting supreme court rule. The State, on the other hand, maintains that section 115-4(f) unconstitutionally infringes on the courts>' inherent rule-making authority. Before discussing this separation of powers question, however, we think our initial inquiry ought to be whether or not there is an independent constitutional right to directly voir dire prospective jurors in a criminal case. For if such right exists then Supreme Court Rule 234 is, of necessity, unconstitutional. Diversey Liquidating Corp. v. Neunkirchen (1939), 370 Ill. 523, 19 N.E.2d 363.
• 1 The right to a jury trial as guaranteed by the 1970 constitution is exactly the same right as was guaranteed by the previous 1870, 1848 and 1818 Illinois Constitutions. The Illinois Constitution of 1970 contains two sections concerning jury trials. Article I, section 13 (Ill. Const. 1970, art. I, § 13), states that, "The right of trial by jury as heretofore enjoyed shall remain inviolate." Except for punctuation changes this provision is the same as article II, section 5, of the 1870 constitution. (Ill. Const. 1870, art. II, § 5.) The provision should therefore be interpreted as before. Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill. App.3d 711, 292 N.E.2d 540.
In People v. Kolep (1963), 29 Ill.2d 116, 193 N.E.2d 753, the court held that this provision, which is applicable to both civil and criminal cases, guarantees a criminal defendant the right to have the facts in controversy determined by 12 impartial jurors. While an impartial jury is undoubtedly a constitutional prerequisite to any plan regulating voir dire examination, article I, section 13, does not necessarily bolster the defendant's position. In fact, as we will later discuss, the respective positions of the State and defendant in this case reflect the on-going public debate over the best method of selecting jurors.
We also doubt whether the words "as heretofore enjoyed" contained in this section offer any particular help to defendant's case. These words have been viewed as restricting the class of cases where a right to jury trial is available (Seifert v. Standard Paving Co. (1976), 64 Ill.2d 109, 355 N.E.2d 537; Ford v. Environmental Protection Agency (3d Dist. 1973, 9 Ill. App.3d 711, 292 N.E.2d 540), and the substantive right guaranteed by this provision should be defined by examining the English common law. (Grace v. Howlett (1972), 51 Ill.2d 478, 283 N.E.2d 474.) In England, however, the practice has always been that a voir dire examination may be conducted only after a challenge has been exercised and in support of that challenge. See R. Millar, Civil Procedure of the Trial Court in Historical Perspective 289-291 (1952).
Furthermore, the Bill of Rights Committee, in reaffirming the principles embodied in article I, section 13, was primarily concerned with the size of the jury, not the method of its selection. (See 6 Record of Proceedings, Sixth Illinois Constitutional Convention 26-28 (hereinafter cited as Proceedings).) Consequently there is nothing to indicate that article I, section 13, was ever intended to confer upon litigants a right to directly question prospective jurors.
We have also closely examined article I, section 8 (Ill. Const. 1970, art. I, § 8), concerning rights after indictment and have reached a similar conclusion with respect to it. The right to an impartial jury is so basic that the constitutional draftsmen expressly referred to it in article I, section 8. However, the mere fact that this guarantee is spelled out in article I, section 8, does not, in our opinion, resolve the related question of whether the constitution guarantees parties a right to directly examine prospective jurors. Again the record of the convention is silent with respect to this question. See 6 Proceedings 42.
General principles of statutory construction also apply in the construction of constitutional provisions. (Johnson v. State Electoral Board (1972), 53 Ill.2d 256, 290 N.E.2d 886.) In construing statutes, Federal authority should be consulted where there is a lack of Illinois precedent. (Fitzgerald v. Chicago Title & Trust Co. (1st Dist. 1977), 46 Ill. App.3d 526, 361 N.E.2d 94.) Supreme Court Rule 234, while permitting the trial judge to allow direct examination of prospective jurors by counsel "also introduces the alternative, embodied in the comparable federal rule, of requiring the parties to furnish their questions to the trial judge." (Ill. Ann. Stat., ch. 110A, par. 234, Council Commentary, at 104 (Smith-Hurd Supp. 1977).) Given the similarities between the Illinois and ...