Appeal from the Circuit Court of Cook County; the Hon. Richard
Petrarca, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, James Newsome, was charged by information with three counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1), one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2), and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). A jury found him guilty of murder, armed robbery and armed violence. He was sentenced by the trial court to life imprisonment on one count of murder and to a concurrent term of 30 years on one count of armed robbery.
On appeal, defendant raises the following issues: (1) whether he was denied a fair trial because the jury which convicted him was unrepresentative, prejudicial and prone to convict; (2) whether his fifth amendment rights were violated because the trial court admitted testimony impeaching him when he chose not to take the stand; (3) whether the prosecutor's closing argument was improper; (4) whether the trial court erred in the sentencing hearing; and (5) whether the sentence he received was unduly severe.
Defendant's charges stem from the murder and armed robbery of a 72-year-old grocery owner, Mickey Cohen. At defendant's trial, Josie Nash, a store employee, testified that defendant entered the store at approximately 1:45 p.m. on October 30, 1979. He selected and brought a few items to the counter which Cohen bagged. Anthony Rounds, a frequent customer, entered the store, engaged in conversation with Cohen and selected two items for purchase. Rounds testified that he saw a gun butt in defendant's shirt. Cohen picked up a gun that was under the counter, put it into his pocket and told Rounds to go outside and wait.
Nash testified that defendant then brought another item to the checkout counter which she rang up. Defendant pulled his gun and said, "Don't do it, old man." Cohen was also pulling his gun and at this point Nash ran to the cooler to hide. Cohen was shot twice in the head and neck. After hearing the shots, Rounds ran back into the store, bumping into defendant as he was exiting. The victim's pockets had been emptied and his gun was missing.
Both Nash and Rounds identified defendant in a subsequent lineup, as did another witness who saw defendant on the street at approximately the time of the murder. Although positive fingerprints were found on the various items in the store that defendant allegedly handled, tests revealed that they did not belong to the victim, defendant, or the witnesses. At trial, defendant produced three alibi witnesses who claimed that defendant was with them watching "TV" soap operas at the time in question.
The jury found defendant guilty of murder, armed robbery and armed violence. The State sought the death penalty and defendant waived his right to a jury hearing for the sentencing segment of his trial. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)(3).) Although the sentencing hearing commenced shortly after the end of trial, the trial judge did not hear the post-trial motions until four months later. At that time, the trial judge denied the motions and sentenced defendant to life imprisonment on one murder count and to a concurrent term of 30 years on one armed robbery count. The judgment on the armed violence count was dismissed.
Defendant claims he was denied a fair trial regarding the guilt determination segment of his trial because:
A. the jury was unrepresentative of the community since all veniremen who were opposed to the death penalty were automatically excluded;
B. the jury was inherently biased and prone to convict as a result of the automatic exclusion;
C. the State used its peremptory challenges to exclude all available jurors who were members of his race; and
D. the jury prejudged his guilt.
During voir dire, each potential juror was asked whether he or she had any strong feelings by reason of religion or conscience against the death penalty. The juror was then asked if he could consider all possible penalties under the law and if he would automatically vote against the death penalty no matter what the facts of the case were. Defendant claims that individuals who are opposed to the death penalty constitute a "distinct group" which has "qualities of human nature and experience" unique unto themselves. Because this group was systematically excluded from the pool of potential jurors, defendant argues that the "fair-cross-section requirement" of the sixth amendment as discussed in Duren v. Missouri (1979), 439 U.S. 357, 58 L.Ed.2d 579, 99 S.Ct. 664, was violated.
• 1 According to defendant, the Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, case and its progeny left open the question of whether a "death-qualified" jury violates the requirement of a representative jury. In Witherspoon, the Supreme Court held that the death sentence could not be carried out if veniremen were excluded simply because of a general objection to the death penalty, but that it was proper to exclude a juror for his automatic opposition to the death penalty or his inability to fairly determine guilt. (391 U.S. 510, 522-23 n. 21, 20 L.Ed.2d 776, 785 n. 21, 88 S.Ct. 1770, 1777 n. 21.) Defendant contends that four jurors were disqualified even though they stated that they could adequately adjudge guilt. The record reveals, however, that in each case the juror did indicate that he or she would, or might, vote against the death penalty automatically. We believe the jury selection satisfied the Witherspoon requirements and, of course, the Witherspoon holding is limited to those circumstances in which the death penalty is actually imposed by the jury. Bumper v. North Carolina (1968), 391 U.S. 543, 545, 20 L.Ed.2d 797, 800, 88 S.Ct. 1788, 1790.
• 2 The sixth amendment's right to trial by a panel of "impartial" jurors has been interpreted as meaning that the State, as well as the defendant, is entitled to an impartial jury. The jury must be free from bias not only against the accused, but also for the accused. (Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, 596; People v. Hamilton (1981), 100 Ill. App.3d 942, 947-48, 427 N.E.2d 388, appeal denied (1982), 91 Ill.2d 554.) Defendant's contention that the fair-cross-section requirement of the sixth and fourteenth amendments was violated is without merit.
Defendant also argues that the automatic exclusion of jurors under the Witherspoon standard produced a jury that was inherently biased and prone to convict. Defendant presents copies of various studies which support his theory that persons not opposed to the death penalty are more prone to convict. In Witherspoon, the court said that the data produced in that case was "too tentative and fragmentary" and that it would not conclude that the exclusion of jurors opposed to capital punishment substantially increases the risk of conviction. (Witherspoon v. Illinois (1968), 391 U.S. 510, 517-18, 20 L.Ed.2d 776, 782, 88 S.Ct. 1770, 1774.) Defendant argues that the data is now complete and is sufficient to support his contention.
Recent Illinois cases have rejected similar studies to those offered by defendant because they involve very limited numbers and small variations (People v. Lewis (1982), 88 Ill.2d 129, 147, 430 N.E.2d 1346, U.S. appeal pending), or because at most all that they show is a pattern of correlation between jurors' attitudes toward the death penalty and toward conviction in a particular set of facts. (People v. Hamilton (1981), 100 Ill. App.3d 942, 948; see also Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, 593-96; Hooks v. State (Del. 1980), 416 A.2d 189, 195.) We likewise find the studies inconclusive. Defendant was not denied a fair trial because of the exclusion of jurors under the Witherspoon standard.
• 3 Defendant further argues that because Illinois has a bifurcated system of determining guilt and sentencing (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)), there is no need to death-qualify the jury before the guilt-determining stage. Defendant suggests that an additional voir dire be held after a defendant has been adjudged guilty and has requested a jury determination of his sentence. This same argument was rejected in People v. Gaines (1981), 88 Ill.2d 342, 358, 430 N.E.2d 1046, where the court stated that it was questionable whether there was power to adopt this type of procedure under the statute and that its adoption would pose ...