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People v. Thornton

OPINION FILED NOVEMBER 4, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD S. THORNTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Piatt County; the Hon. JOHN P. SHONKWILER, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The defendant was charged by information with committing the offense of possessing less than 2.5 grams of cannabis in violation of section 4(a) of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(a)). At the conclusion of a jury trial conducted on January 26 and 27, 1976, defendant was found guilty, sentenced to 15 days in the county jail and fined $150 plus costs.

During selection of the jury, the court refused to allow counsel to actively participate in voir dire and the court refused 17 of the 18 written questions submitted by defendant for inclusion in voir dire by the court.

The factual circumstances which culminated in defendant's arrest have been succinctly recalled by Officer Daniel Grady who testified that he was driving in Forest Preserve Park in Bement, Illinois, at approximately 9:50 p.m. on September 17, 1975, when he observed defendant in a parked automobile. From a distance of approximately 15 feet, Grady observed defendant open one of the rear doors of the automobile, dropping an object to the ground which emitted sparks. Grady testified that his lights illuminated the car in which defendant was sitting.

After stopping his patrol car, Grady walked to the car in which defendant was sitting and picked up People's Exhibit No. 1, the object which defendant had dropped. Grady testified that the object appeared to be a lighted marijuana cigarette. Grady then conversed with defendant through the open car window, placing him under arrest.

Defendant testified that as Grady approached, he told the car's occupants not to move while he searched beneath the car, picking up something from the ground. Defendant denied dropping anything on the ground. He said he could not be certain whether he had previously seen People's Exhibit No. 1, the object which Grady had picked up. Defendant and Ken Kercheval, another occupant of the car, testified that the window next to defendant would not open.

The court then permitted Grady to repeat his prior testimony over objection by defense counsel.

On appeal, defendant has raised two issues for our review: (1) whether defendant has a right to actively participate in voir dire pursuant to section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)), or whether the trial court properly limited that participation pursuant to Supreme Court Rule 234 (58 Ill.2d R. 234); and (2) whether the court abused its discretion in permitting the complaining witness, Officer Grady, to repeat his testimony on rebuttal.

• 1 At one time in Illinois, our supreme court held that counsel had the right to put questions directly to the jurors during the voir dire examination. (Donovan v. People (1891), 139 Ill. 412, 28 N.E. 964.) Donovan, however, was altered by former Supreme Court Rule 24-1 (effective September 17, 1958), which allowed parties and counsel a reasonable opportunity to supplement voir dire conducted by the court. (13 Ill.2d R. 24-1.) Section 16 of article VI of the 1970 Illinois Constitution thereafter provided: "General administrative and supervisory authority over all courts> is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules." Pursuant to this constitutional authority, our supreme court provided in its currently effective Rule 234: "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." (58 Ill.2d R. 234.) Rule 431 provides that Rule 234 shall apply to criminal cases. (58 Ill.2d R. 431.) While Rule 234 authorized the trial court to permit parties or their attorneys to make direct inquiry, it also introduces the alternative of requiring parties or their attorneys to submit proposed questions to the judge. The Rule makes clear that the decision as to which alternative to use or whether to permit supplementation of its own examination lies entirely with the court.

In this appeal, defendant contends that section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)) entitled him to conduct his own voir dire examination. At the time of trial on January 26 and 27, 1976, section 115-4(f) provided: "After examination by the court the jurors shall be examined, passed upon, accepted and tendered as a panel of 4 commencing with the State. 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." Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f).

In People v. Taylor (1971), 50 Ill.2d 136, 277 N.E.2d 878, the court noted that the General Assembly added subsection (e) to section 109-3 of the Code which provided that the State could not appeal from certain interlocutory orders referred to in section 114-1 of the Code. The statute conflicted with Supreme Court Rule 604 (58 Ill.2d R. 604) which provided for appeals from orders, the substantive effect of which was to dismiss for one of the grounds enumerated in section 114-1 of the Code. Rule 604 was issued pursuant to authority given the court in section 7 of article VI of the Illinois Constitution of 1870. That authority provided that the supreme court could provide by rule for appeal to the appellate court from other than final judgments of the circuit court. The supreme court held that the portion of section 109-3(e) in conflict with Rule 604 was void because it was in violation of section 7 of article VI of the Constitution.

In People ex rel. Stamos v. Jones (1968), 40 Ill.2d 62, 237 N.E.2d 495, it was noted that section 121-6(b) of the Code of Criminal Procedure provided that persons convicted of forcible felonies could not be admitted to bail and could not have their sentences stayed pending appeal. This statute was in conflict with Supreme Court Rule 609(b), which provided that an appellant may be admitted to bail and may have his sentence stayed pending appeal. The court held that Rule 609(b) was promulgated pursuant to section 7 of article VI of the 1870 Constitution, which provided that the supreme court may provide by rule for expeditious and inexpensive appeals, and held that section 121-6(b) violated that section of the Constitution.

• 2 The instant case is similar to Taylor and Jones in that a conflict between a Supreme Court Rule and the Code of Criminal Procedure is involved. We hold, however, that the supreme court rule governs our disposition of the instant case. Section 16 of the article VI of our 1970 Constitution gives the supreme court "General administrative and supervisory authority over all courts> * * *." Owing to this recent constitutional grant of authority to the supreme court, we distinguish the earlier cases of People ex rel. Chicago Bar Association v. Feinberg (1932), 348 Ill. 549, 556, 181 N.E. 437, People v. Davis (1934), 347 Ill. 396, 399, 192 N.E. 210, and People v. Lindsay (1952), 412 Ill. 472, 486, 107 N.E.2d 614, which held that circuit court rules conflicting with statutes are invalid and do not have the force and effect of law.

We are aware of Justice Stengel's excellent opinion in People v. Brumfield (1977), 51 Ill. App.3d 637, 366 N.E.2d 1130, affirming a burglary conviction in which the trial court refused to permit defense counsel to ...


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