APPEAL from the Circuit Court of McDonough County; the Hon.
DANIEL ROBERTS, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Jerry Kleiss was convicted of three counts of theft of property valued over $150 and was sentenced to three concurrent 5-year terms of imprisonment. He appeals, contending that he was denied a fair trial because of a radio broadcast aired during the trial, and that, in imposing sentence, the trial court erroneously found certain factors in aggravation.
The trial was conducted on March 5 and 6, 1979. During the voir dire of jurors, the trial judge admonished them to consider only the evidence offered in the courtroom and not anything else in arriving at their verdict.
The State's evidence established that in late September and early October of 1978, tools were stolen from sheds on three different farms in the same area of McDonough County. In each case the value of the tools exceeded $150.
McDonough County Sheriff John Bliven testified for the State that he interviewed defendant at the Hancock County jail on October 20, 1978. At the beginning of the interview, defendant was read his Miranda rights and signed a form waiving them. When the witness was asked about the content of defendant's statements, the defense objected. The jury was removed from the courtroom, and the defense requested and was granted a hearing outside the jury's presence on the previously filed motion to suppress.
In the hearing defendant testified that he was taken into custody by the Hancock County sheriff's office around 12:30 a.m. on October 20, 1978. He was questioned by Hancock County authorities during the early morning hours about matters unrelated to the instant case and eventually signed a written statement. Defendant testified that during this time he made numerous requests for an attorney which were not honored. When he tried to terminate the questioning, he was grabbed by the throat and slapped around by Deputy Bill Farrell. At about 6 a.m. defendant was taken to a cell in the Hancock County jail.
He was interviewed by McDonough County Sheriff Bliven later that day in the afternoon. According to defendant, from the time he was taken into custody until his interview with Bliven, he had no food or rest. Prior to Bliven's arrival at the jail, defendant was told by Hancock County authorities not to request an attorney under threat of more beatings. Defendant acknowledged that at his interview with Bliven, he signed a waiver of his Miranda rights. Because of pressure from the Hancock County authorities, he confessed to the three thefts although he had not committed them. A written statement was taken in the form of questions by Bliven and answers by defendant. Defendant acknowledged that it set forth his answers with substantial accuracy.
After defendant testified, the judge continued the hearing until the next day. He asked the representatives of the news media, including radio station WKAI, not to report defendant's testimony at the suppression hearing in detail because a mistrial could possibly result. The jury was permitted to separate until the following day, and court was adjourned.
The next morning prior to trial WKAI broadcast a news item about the trial. The broadcast stated that the jury had been removed from the courtroom so that testimony on defendant's motion to suppress could be presented and that defense counsel argued that a confession defendant made to Bliven while in custody in Hancock County was inadmissible because it was not voluntarily made. The broadcast continued:
"On the witness stand Kliess [sic] told the court he'd been `slapped around' by Hancock County authorities during questioning.
Kliess [sic] also stated he'd been denied any food or rest during the 15-hours he spent in custody before McDonough County Sheriff John Bliven and Deputy Jack Thurman questioned him regarding the tool thefts in McDonough County. Further * * * Kliess [sic] said Hancock officials refused to let him contact an attorney. Hancock County officers last night denied the charges made by Kliess [sic].
Under [the prosecutor's] cross-examination Kliess [sic] stated he was never touched on [sic] in any way threatened by McDonough County officials * * * that he was given his so-called `Miranda rights' * * * that he did not ask to speak with an attorney during questioning by McDonough County officials * * * and that the statement he gave Sheriff Bliven was substantially accurate.
There appears to be a question as to whether the alleged threats made toward Kliess [sic] by Hancock officials affected his responses in dealing with the McDonough County officials."
The broadcast concluded by stating that because the attorneys were unable to cite any cases supporting their ...