APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Champaign County, defendant Robert Kirkpatrick was convicted of the murders of Douglas Simmons and Mark Harris and sentenced to concurrent terms of imprisonment of 200 to 500 years for each.
On appeal defendant asserts that the trial court erred in (1) permitting trial by a jury selected in a manner making it conviction-prone, (2) permitting, over his objection, a closed hearing on certain pretrial motions, (3) permitting evidence of his participation in another crime to be presented to the jury, (4) erroneously instructing the jury, (5) permitting inflammatory photographs and slides to be seen by the jury, (6) refusing to admit evidence of a statement made by a co-defendant, (7) submitting evidence of his prior convictions to the jury, (8) granting the State's motion to sever and denying his motion for joinder, (9) refusing to remove a juror for cause, and (10) imposing excessive sentences.
As the sufficiency of the evidence to convict is not in dispute, we summarize the evidence only to the extent necessary to explain the issues.
The bodies of the victims were discovered along a Champaign County road on the morning of Monday, September 26, 1977. Most of the proof of defendant's guilt came from a statement given by him to law enforcement officers, the substance of which is hereafter described. On Saturday, September 24, 1977, Jerry Gleckler and Ted Parsons drove up to defendant's place of work in Danville and showed him some guns which they said they had just "ripped off." They said they were going to saw off a 20-gauge shotgun and sell a couple of the guns. That evening the three went to Gleckler's trailer. The shotgun was sawed off with a hacksaw brought by defendant. Parsons and defendant left about 7:30 or 8 p.m. and, because Parsons needed money, tried to find a place to rob. An Arco service station near Danville was selected. Their car was parked near the station and the shotgun was loaded. Defendant put the gun under a coat and walked to the station. When he went into the station building, he decided he could not commit the robbery so he left. Parsons then agreed to do it, saying he would hit the attendant over the head and take the station's money. Defendant watched from the car, started to drive up to the station, heard Parsons shoot the attendant, picked Parsons up, and drove to Champaign.
Defendant and Parsons split the robbery proceeds, stayed overnight Saturday in Champaign, and on Sunday, returned to Danville and went to Gleckler's trailer. The three decided to rob another place but thought it best that it not be near Danville. They decided on a liquor store near Mahomet, northwest of Champaign. They drove to the liquor store but Parsons decided they should use another car for the robbery. Parsons suggested waiting for someone to come out of the liquor store and then abducting them and taking the car. They soon decided that a Plymouth leaving the store with two persons in it was an appropriate car to obtain. They followed the car, forced it to the side of the road, and Parsons jumped out with the shotgun. Defendant was surprised at the manner in which Parsons forced the other car to stop. He heard Parsons yell something, then heard two shotgun blasts. Gleckler got out and defendant heard two more blasts. Gleckler came back, asked for two more shells, and said he wanted to make sure. Defendant handed him the box of shells and turned around. He heard Gleckler shoot again. Gleckler returned to the car with blood on his pants and shirt. Defendant thought that the victims were to be tied with a rope that was in Parsons' car and had not thought that they were to be shot. Defendant was told to drive the victim's car back to the liquor store and did so but got lost doing it. When the three eventually got back to the liquor store, it was closed and no robbery was attempted.
A man testified to having seen defendant, Gleckler, and Parsons in a restaurant on Sunday night and a person who had been with that man at the restaurant testified to having heard one of the three tell the others, "Don't do anything anybody will remember us by." Other evidence of some corroborative value was also presented by the State.
Defendant testified, on his own behalf, said that he had been drinking on the day in question, and explained his participation as set forth in this paragraph. He was with the other two men in a car outside the liquor store. There he persuaded Parsons not to hold up a person coming out of the store. Parsons had also talked of robbing the store but defendant said it was stupid and that he didn't need the money. Parsons drove after a car leaving the store but there was no conversation as to what they intended to do. Parsons drove in front of the other car, stopped, causing the other car to stop, and ran back to the other car. Gleckler got out with a shotgun and some shots were fired. Gleckler came back for some shells, defendant reached for them but Gleckler got them himself and said something about Parsons being crazy. Defendant got out, went to the back of the car and heard Parsons tell Gleckler to shoot them but Gleckler refused. Parsons told defendant to pick up spent shotgun shells. As he did so, he heard two more shots. Gleckler, rather than defendant, drove the victim's car away from the scene. Defendant did not know that anyone was to be shot. The trio had no particular place in mind to go when they had set forth on Sunday.
The State indicated that it would seek the death penalty and questioned the prospective jurors accordingly. Defendant's contention that the method of jury selection resulting in a conviction-prone jury is based upon the trial court's excusing for cause seven prospective regular jurors and two prospective alternate jurors who stated on voir dire that they would under no circumstances vote at sentencing in a manner to authorize a death penalty.
Defendant's theory is an outgrowth of the decision in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. There the court held that the then-existing Illinois practice of excusing for cause all prospective jurors who admitted opposition to the principle of the death penalty produced a constitutionally impermissible death-penalty-prone jury. However, that court rejected the argument that a jury so screened was necessarily conviction-prone and let the convictions stand while remanding for resentencing. That court concluded that the results of studies presented on the question of whether a death-penalty-prone jury was necessarily conviction-prone were "too tentative and fragmentary" to establish that theory. 391 U.S. 510, 517, 20 L.Ed.2d 776, 782, 88 S.Ct. 1770, 1774.
The Witherspoon court stated that had the trial court only dismissed prospective jurors who maintained that under no circumstances could they impose a death sentence, the prosecution could argue that the resulting jury was not death-penalty-prone but could not logically do so when all persons having scruples against capital punishment, or opposing in principle, were excluded. In a footnote to this discussion the court foresaw the argument made here. The footnote stated:
"Even so, a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution." 391 U.S. 510, 520 n. 18, 20 L.Ed.2d 776, 784 n. 18, 88 S.Ct. 1770, 1776 n. 18.
In the post-Witherspoon cases of People v. Wright (1974), 56 Ill.2d 523, 309 N.E.2d 537, and People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363, the supreme court has rejected the contention that the practice of excusing for cause, jurors opposed to capital punishment imposes upon the defendant an impermissibly conviction-prone jury. The Wright opinion described the issue as having been left open by Witherspoon and a companion case of Bumper v. North Carolina (1968), 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788, but both Wright and Clark concluded that no new data had been presented to support the theory that a jury selected in a manner so as to exclude those opposed to capital punishment was conviction-prone.
Defendant asserts that additional studies are now available to demonstrate that a jury in a capital case chosen within the guidelines of Witherspoon, permitting exclusion of jurors who would never impose the death penalty, is impermissibly conviction-prone. The Witherspoon note referring to the possibility that some future defendant might establish that such bias existed did not say that if this happened, the conviction should be set aside. Rather, the note indicated that under those circumstances, a future court would have to balance the State's interest in having a jury capable of imposing capital punishment against the defendant's interest in a completely fair jury to decide upon the question ...