Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 21, 1982.
Following a jury trial, defendant was found guilty of three counts of attempt murder, two counts of armed robbery and one count of aggravated battery committed on February 5, 1977. Judgment was entered only on the attempt murder and armed robbery counts and defendant was sentenced to concurrent terms of imprisonment of 30 years on each count.
On appeal, defendant raises numerous issues, including the manner and scope of voir dire, the State's improper use of peremptory challenges, allegedly improper lay and expert witness testimony, the propriety of jury instructions and prosecutorial comments, reasonable doubt and the effective assistance of counsel.
At trial, defendant pleaded not guilty by reason of insanity. He now contends that he was denied a fair and impartial jury because sufficient inquiry was not made of the jurors regarding their attitudes toward psychiatry and the insanity defense to enable him to excuse jurors for cause and to intelligently exercise his peremptory challenges. He alleges that only those jurors who admitted to having had prior contact or experience with psychiatrists were questioned directly as to whether they had any bias or prejudice against psychiatrists.
As stated in People v. Dallas (1980), 85 Ill. App.3d 153, 405 N.E.2d 1202, appeal denied (1980), 81 Ill.2d 595, cert. denied sub nom. Cooper v. Illinois (1981), 450 U.S. 1000, 68 L.Ed.2d 202, 101 S.Ct. 1708, the only legitimate purpose of a voir dire examination is to assure the selection of an impartial jury. Under Supreme Court Rule 234 (73 Ill.2d R. 234), the trial court has primary responsibility in conducting the voir dire towards that end. The court may, in its discretion, permit the parties to submit additional questions to it for further inquiry. An abuse of discretion will be found only if, after reviewing the record, it is determined that the court's failure to ask defendant's tendered questions thwarted the selection of an impartial jury. 85 Ill. App.3d 153, 165.
Preliminary to the voir dire of prospective jurors, the trial judge informed the parties that he would conduct the questioning of jurors himself and that proposed questions could be submitted in writing. He questioned all of the prospective jurors generally and a few individually regarding whether they could follow the law as embodied in his instructions regardless of their opinion of the defense of insanity. He also preliminarily questioned the entire venire regarding whether there was anything about the defense of insanity which would prevent them from being fair and impartial. Defendant submitted a list of questions regarding the insanity defense which he contends were necessary to discern any bias or prejudice towards psychiatry or psychiatrists. The court rejected said questions as inappropriate. We have reviewed the record and we do not find such to be an abuse of discretion.
• 1 As we have previously stated, the purpose of a voir dire is to select a fair and impartial jury; it is not to be used as a means of pre-educating or indoctrinating a jury or as a means of impaneling a jury with particular predispositions. (People v. Nicholson (1978), 61 Ill. App.3d 621, 626, 377 N.E.2d 1063; Gasiorowski v. Homer (1977), 47 Ill. App.3d 989, 365 N.E.2d 43.) In Gasiorowski, the court approved of a direct inquiry into a prospective juror's bias or prejudice which evoked direct and apparently honest responses from the various jurors. (47 Ill. App.3d 989, 993.) In the instant case, the trial court made repeated inquiries regarding the insanity defense and the ability to remain impartial, which inquiries were made applicable to all of the prospective jurors. At defense counsel's request, the court agreed to and did ask additional follow-up questions of those prospective jurors who had indicated they had had previous dealings with psychiatrists. Of those who had never utilized the services of a psychiatrist, the judge inquired throughout the voir dire whether anything they had heard, including the more specific questions put to the other jurors, would affect in any way their ability to remain fair to both sides. The record is replete with inquiries such as the following:
"THE COURT: Is there anything that you have heard me ask some of these other people that would make you feel you could not be fair to the defendant and the State as well if you remain as a juror here?"
"Is there anything you have heard so far, or anything that maybe has been suggested in some way or another that would make you feel you could not be a fair juror if you remained here as a juror?"
Clearly, the judge observed the prospective jurors and was satisfied that their responses were direct and honest. There is nothing before us to indicate an abuse of discretion with regard to the voir dire and the impaneling of a fair and impartial jury.
Defendant argues that due process and the right of defendant to a trial by a fair and impartial jury were violated by the State utilizing all of its peremptory challenges to exclude black jurors. The record shows that the State exercised all of its 10 peremptory challenges to exclude blacks. Defendant moved for a mistrial after the State had used six challenges against six blacks and again at the conclusion of the jury selection proceedings. The State did not deny that it had used its 10 challenges to excuse 10 blacks, but pointed out that the defense had also excused a prospective black juror, that it had peremptorily excused a white juror who was a prospective alternate and that it was attempting to achieve a balance of men and women and age groups. While an examination of the record shows that white jurors who fell within the men, women and age groups to which the State referred were not excused peremptorily by the State, we do not agree with defendant's contentions.
It is true that it is constitutional error to exclude a group as a group where it is shown that the group has been systematically prevented from jury service or on particular juries. (Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824; People v. Gaines (1981), 88 Ill.2d 342, 430 N.E.2d 1046.) No showing of any such systematic action, however, has been made here.
Defendant relies principally on People v. Payne (1982), 106 Ill. App.3d 1034, 436 N.E.2d 1046, which cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692, People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L.Ed.2d 110, 100 S.Ct. 170, and seeks to distinguish Swain and the Illinois cases which followed Swain. In People v. Payne (1982), 106 Ill. App.3d 1034, 1040, 436 N.E.2d 1046, 1050, the appellate court stated:
"Accordingly, we hold that when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks. At this stage, the burden of demonstrating that the Constitution was not being violated is upon the prosecution. Also, at this stage, the trial court should not employ any presumption that the Constitution is not being violated. Once it reasonably appears to the trial court that the accused is being affirmatively denied an impartial jury as required under the sixth amendment, there is no reason to presume that the State is not affirmatively violating the accused's constitutional entitlement."
In that case, the court also stated that "a defendant is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross section of the community as the process of random draw and constitutionally acceptable procedures permit." 106 Ill. App.3d 1034, 1037, 436 N.E.2d 1046, 1048.
This court, in People v. Fleming (1980), 91 Ill. App.3d 99, 413 N.E.2d 1330, appeal denied (1981), 83 Ill.2d 571, expressly refused to follow the doctrine of the representative cross section of the community as enunciated by the Supreme Court of California in People v. Wheeler, stating:
"We agree with the Wisconsin Court of Appeals that `the test proposed by the California court is vague and uncertain, and severely limits the scope of peremptory challenges. If peremptory strikes can only be exercised in a certain way, dependent on circumstances, and subject to judicial scrutiny, they will no longer be peremptory. We refuse to undertake such an alteration of the very nature of the peremptory system.' State v. Grady (1979), 93 Wis.2d 1, 13, 286 N.W.2d 607, 612. * * *." (91 Ill. App.3d 99, 105.)
See also People v. Allen (1981), 96 Ill. App.3d 871, 422 N.E.2d 100; People v. Tucker (1981), 99 Ill. App.3d 606, 425 N.E.2d 511; People v. Lavinder (1981), 102 Ill. App.3d 662, 430 N.E.2d 243; People v. Belton (1982), 105 Ill. App.3d 10, 433 N.E.2d 1119. We adhere to our holding in Fleming and decline to adopt the view expressed in Payne.
If, as Payne holds, the State under the circumstances there posited has to show a basis for its peremptory challenges, then the peremptory challenge has been so effectively emasculated as to destroy its function which Swain and Illinois has recognized (People v. Harris (1959), 17 Ill.2d 446, 451, 161 N.E.2d 809):
"The fact that the State's exercise of peremptory challenges resulted in excluding them [blacks] from the petit jury did not deprive defendant of any constitutional right. [Citation.] The right of peremptory challenge is a substantial one which should not be abridged or denied. It may, by its very nature, be exercised or not exercised, according to the judgment, will or caprice of the party entitled thereto, and he is not required to assign any reason therefor. [Citation.]"
Further, if the law in Illinois is to be the abolition of peremptory challenges as enunciated in Payne, the problem should be met forthrightly by the legislature by abolishing peremptory challenges to make all challenges challenges for cause and place their exercise in the discretion of the trial judge. This would be in keeping with the modern trend to give the jury selection process to the trial judge. (73 Ill.2d Rules 234, 431.) See People v. Jackson (1977), 69 Ill.2d 252, 371 N.E.2d 602, holding that section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)), which gave opposing counsel the right to conduct voir dire examination of prospective jurors for ...