APPEAL from the Circuit Court of Christian County; the Hon.
GEORGE W. KASSERMAN, JR., Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the Circuit Court of Christian County, defendant John Knippenberg was convicted of murder and sentenced to a term of 30 to 60 years imprisonment. Defendant appeals from his conviction alleging that the trial court erred in denying his motion for a change of venue and change of judge; that it abused its discretion in refusing to sequester the jury; that defendant was denied a fair trial as a result of prejudicial comments made by an excused juror in the presence of two panel members, and as a result of unauthorized communications between jurors and a third party; that the delay between defendant's first and second trial deprived him of the right to a speedy trial; and that it was improper for the court to admit sworn testimony of unavailable witnesses given at an earlier trial of defendant.
Defendant and two co-defendants, James Vaughn and John Burton, were convicted in separate trials of the murder of a jeweler during an attempted armed robbery. We affirmed defendant's conviction (33 Ill. App.3d 971, 338 N.E.2d 885), but the supreme court reversed and remanded the cause for a new trial (66 Ill.2d 276, 362 N.E.2d 681). The facts of the occurrence have been described in these two opinions and in People v. Vaughn, 25 Ill. App.3d 1016, 324 N.E.2d 17 (5th Dist. 1975), and need not be repeated here.
Prior to the new trial, on June 23, 1977, defendant filed a motion to change the place of trial pursuant to section 114-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-6). In his motion and supporting affidavit, defendant alleged that he could not receive a fair and impartial trial in Christian County by reason of prejudice in the community. Specifically, he cited the excessive publicity in the media concerning his prior conviction and reversal; the popularity of the deceased who had operated a jewelry store for many years in Taylorville, the county seat; and the prejudice against defendant as an "outsider" and convicted felon. At a hearing on this and other motions, Ann Young of Creative Marketing Services testified that she had conducted a poll of 139 individuals to determine the attitudes of the voters of Christian County towards defendant. The results of the poll indicated that a majority of these individuals believed that defendant was guilty; that a retrial was unnecessary; and that the county should not bear the cost of a new trial. It was Ms. Young's opinion that defendant would be denied a fair and impartial trial by a jury in Christian County. On July 6, 1977, the motion for a change of place of trial was denied.
Thereafter on October 13, 1977, defendant filed a motion for change of venue and for change of judge outside the circuit asserting similar allegations as stated in his prior motion. After a hearing, the motion was denied. Defendant then filed a motion to sequester the jury alleging once again the probability of prejudice against defendant in the community. The trial court denied the motion.
The record reveals that the trial court conducted an extensive and thorough examination of the potential jurors at the voir dire. Of the 12 jurors selected, 10 indicated that they had previously heard of the case. All stated, however, that they knew none of its details; that it made no lasting impression; and that they could be fair and impartial.
During the course of the jury selection, one prospective venireman, in response to the court's questioning his knowledge of the case, stated: "All I remember was there was a trial and essentially that's what I remember about it." The juror was excused but two jurors who later served on the panel heard these comments. Defense counsel, however, tendered both women as jurors without making an objection. Later, after the jury selection process had been completed, defense counsel requested the removal of these jurors from the panel. The court noted that there were multiple defendants in the case and that it was not clear to which trial the excused juror referred.
During the instruction conference, two jurors independently notified the court that their wives had received a telephone call from an unidentified woman urging them to persuade their husbands to find defendant guilty. In denying defendant's motion for mistrial, the court stated that the calls could be equally detrimental to the prosecution.
Defendant first assigns as error the trial court's denial of his motion to change the place of trial and change of judge outside the circuit. He argues that the existence of local prejudice as indicated in the survey prevented him from receiving a fair and impartial trial in the county. As additional support for his position, defendant places great emphasis on the State's failure to introduce any evidence or affidavits refuting the charge of prejudice.
We first note that we are not aware of the existence of any authority in the State of Illinois which permits a movant to request a change of judge outside a particular judicial circuit. Had defendant sought a substitution of the judge he could have followed the procedures set forth in section 114-5 of the Code of Criminal Procedure of 1963 (see Ill. Rev. Stat. 1977, ch. 38, par. 114-5). As defendant was apparently only requesting a change in the place of trial as a result of local prejudice in the community, we address this issue.
1 The general rule in this State is that a defendant is entitled to a change in venue when it appears that there are reasonable grounds to believe that prejudice against the defendant actually exists and that by reason of this prejudice there is a reasonable apprehension that defendant cannot receive a fair and impartial trial. (People v. Gendron, 41 Ill.2d 351, 243 N.E.2d 208 (1968), cert. denied, 396 U.S. 889, 24 L.Ed.2d 164, 90 S.Ct. 179 (1969); People v. Campbell, 28 Ill. App.3d 480, 328 N.E.2d 608 (5th Dist. 1975).) The decision whether to grant a change in venue is discretionary with the trial court, and absent an abuse of that discretion, the decision will not be reversed. (People v. Campbell.) After a careful search of the record, we are convinced that the trial court did not abuse its discretion.
That defendant can point to potentially harmful publicity within a community as indicated by the survey does not, standing alone, establish proof of community prejudice to warrant a change in the place of trial. (People v. Gendron.) In any criminal case attracting public attention in a small community there always exists the possibility of local prejudice. But to hold that such a possibility warrants an automatic change in venue would create an unreasonable standard.
2 The most valuable tool in determining local attitudes towards a defendant is found in the examination of prospective jurors in the voir dire. (People v. Campbell; People v. Myers, 20 Ill. App.3d 83, 312 N.E.2d 741 (4th Dist. 1974).) The jurors need not be totally ignorant of the facts and issues of a particular case. (Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639 (1961); People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645 (1968).) It is sufficient if the jurors can set aside their impressions of the case and render a fair verdict based upon the evidence at trial. (Irvin v. Dowd; People v. Williams.) In the instant case, we find every indication that the jurors selected to the panel were fair and impartial. The jurors were carefully interrogated by the court and respective counsels to determine whether there existed any possible prejudice against defendant. While 10 of the 12 jurors had heard of the case, none knew of its details. Furthermore, the jurors indicated that the case had made no lasting impression on them and concluded that they could be fair and impartial.
3 It is also significant in determining the presence of community prejudice that the second trial took place more than five years after the offense occurred and nearly seven months following the newspaper articles concerning the reversal of defendant's conviction. It is well established that the lapse of time between the alleged publicity and the actual trial may be considered sufficient to dissipate any feeling of prejudice in the community. (People v. Black, 52 Ill.2d 544, 288 N.E.2d 376 (1972).) It is of additional significance that these ...