Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Effingham
County, the Hon. George W. Kasserman, Jr., Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, Aaron Hyche, was found guilty of murder, attempted murder, and kidnapping following a jury trial in the circuit court of Effingham County. The appellate court affirmed his convictions (63 Ill. App.3d 575), and we allowed defendant's petition for leave to appeal.
No question is raised on the sufficiency of evidence. On March 19, 1976, State Trooper Layton Davis stopped an automobile for speeding on an interstate highway. Defendant and James Taylor, the occupants of the car, became involved in an altercation with the trooper, who had been informed by State authorities that an arrest warrant for defendant was outstanding. Herman Honn, a passing motorist, witnessed the altercation, stopped his vehicle and went to help the trooper. Before he could render any aid, defendant shot the trooper three times. The trooper died of his wounds. At least two shots were fired at Honn as he hurriedly returned to his vehicle and sped away. Honn left the highway at the first available exit and notified the State police of the incident by telephone. A short while after the trooper's death, a second motorist, Anna Mae Feldhake, saw defendant and his companion near a car in a ditch off a county road. The motorist stopped to offer them her assistance. The men forced her into the back of her car and drove off. Defendant and Taylor were arrested following a high-speed chase and an attempt to avoid a roadblock. Taylor's mother testified at defendant's trial that, four days following the trooper's death, defendant telephoned her and stated that he had killed a State trooper.
Defendant and James Taylor were charged jointly with the offenses of murder, attempted murder and kidnapping in three separate informations. On defendant's motion the causes were severed for trial. Taylor was tried by a jury in the circuit court of Effingham County and was convicted of all three offenses approximately five days before defendant's trial in the same county began.
The first of the three issues defendant raises here is whether he was deprived of his right to be tried by an impartial jury (Ill. Const. 1970, art. I, sec. 8; U.S. Const., amends. VI and XIV) because part of the jury venire from which his jury was chosen had also been members of the venire from which his co-defendant's jury was selected. Before we reach this issue, however, we must first address the threshold question of whether defendant preserved for review his objections to the overlapping venire. Defendant did not challenge any members of the overlapping venire for cause because of their participation in Taylor's venire. Nor had defendant exhausted his peremptory challenges before all the overlapping members of the venire had been questioned on voir dire. We note, however, that defendant did file a motion for a continuance and that one of the grounds raised in support of the motion was that it would be impossible for defendant to select unbiased and impartial jurors unless his trial were continued since he would otherwise have to draw his jury from the same pool of prospective jurors from which Taylor's jury would be selected. In his post-trial motion defendant contended that the trial court erred in denying the motion for continuance. This was sufficient to preserve the issue for review. See People v. Faulisi (1966), 34 Ill.2d 187, 192, and People v. Kirkpatrick (1953), 413 Ill. 595, 597, in which the same issue was raised in motions for continuances.
Taylor's jury was drawn from a panel of 80 prospective jurors. An auxiliary panel of 20 jurors was also available on short notice at the discretion of the trial court. Only 63 of the 80 prospective jurors were examined on Taylor's voir dire. None of the 20 jurors on short notice were called in Taylor's proceedings.
Prior to defendant's trial, a special panel of 100 prospective jurors was drawn. This second panel, the persons from the original venire of 80 who had not served on Taylor's jury and who had not been excused for cause in the Taylor proceedings, and the 20 jurors on short notice in Taylor's case, constituted the pool from which defendant's jury was selected. The 23 jurors who had been examined on Taylor's voir dire but excused peremptorily, the 17 who were called but not examined, and the 20 on short notice who were never called were the members of Taylor's venire who were also included in defendant's venire.
Of the 12 jurors and two alternates selected for defendant's trial, six were selected from the original venire and eight were selected from the second venire of 100. Of the six from the original panel, three were from the quick-notice portion which was not called at Taylor's voir dire. One of the remaining three was excused prior to deliberations and did not vote for defendant's convictions. The two jurors from the original panel who actually decided defendant's case were not challenged for cause or peremptorily, although the defense had not exhausted its peremptory challenges when they were examined and despite the fact that the trial court had clearly indicated they had been called at Taylor's voir dire.
Two courtrooms were utilized in the jury-selection process. The venire members were kept in one courtroom and were taken from there in panels of four to a second courtroom for questioning by the court and counsel regarding their fitness to serve as jurors in the case. After the panel of four was examined by the court on general and preliminary matters, three of the four would then be excluded while the attorneys examined prospective jurors one at a time.
The record does not show that any of the venire at defendant's trial had been present at Taylor's trial. It does not reveal that there was any discussion of the Taylor trial among the members of the venire for defendant's trial. None of the prospective jurors, including those who actually determined defendant's guilt, indicated they would be unable to set aside any impressions concerning defendant that they may have received from their participation in Taylor's venire.
On the basis of the facts recited, we hold that defendant was not denied his constitutional right to a trial before an impartial jury and is not entitled to a new trial. The sole fact that a portion of defendant's venire overlapped a portion of the venire from which Taylor's jury was selected does not justify a presumption of prejudice; absent are the additional circumstances present in the two cases on which defendant relies, People v. Faulisi (1966), 34 Ill.2d 187, 192-94, and People v. Kirkpatrick (1953), 413 Ill. 595, 599-600, which led this court to find that bias and partiality were inherent in those situations and required a reversal of the defendants' convictions. In addition, the voir dire conducted here, unlike the voir dire in Faulisi, was careful and thorough and provided defendant an opportunity to secure a fair and impartial jury.
In Kirkpatrick there was extensive contact during the term of court between the prospective jurors who did not serve on the co-defendant's jury but who formed Kirkpatrick's venire and the jurors who actually sat on his co-defendant's jury. The members of the venire who were excused from the co-defendant's jury listened to the proceedings in the co-defendant's case before leaving the courtroom. One or two of the prospective jurors, whose identity the court did not know, heard all the evidence in the co-defendant's case, including the testimony of the defendant, who was required to take the stand in his co-defendant's case but repeatedly asserted his constitutional privilege against self-incrimination. In Faulisi, the trial court asked all the prospective jurors generally whether they had any knowledge of the case. One volunteered that she had been called as a juror in the co-defendant's case and as a consequence had formed an opinion which would prevent her from being impartial. Another juror stated he had been called in the co-defendant's case and had discussed that case in a tavern. A third stated that things that had been said in the prior trial prevented her from being fair. A fourth stated that she had been in the courtroom when the co-defendant's case was being tried and therefore could not be impartial. Although all these jurors were excused, this court found the facts sufficiently analogous to those in Kirkpatrick to justify a finding that bias and prejudice were inherent in that situation.
Here, by contrast, the defendant has pointed to no similarly extensive contact between the members of the overlapping venire and Taylor's jury; nor has he shown that the prospective jurors developed a familiarity with the evidence as a consequence of their inclusion in Taylor's venire. Defendant has not pointed to any evidence that any of the prospective jurors had actually prejudged defendant because of matters they had heard while sitting in Taylor's venire. We are thus not ...