Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged with three counts of murder and one of aggravated battery. Following a jury trial, he was found guilty on all counts and was sentenced to 25 years imprisonment. On appeal, he contends that: (1) the fact that a juror's sister had been the victim of a crime very similar to the one for which defendant stood accused, which was not revealed during the voir dire examination, deprived him of his right to a fair trial by an impartial jury; (2) the trial court committed reversible error in refusing to allow testimony by the juror regarding his post-trial consultation with his private attorney during the hearing on a motion for a new trial; and (3) the juror's failure to respond to a voir dire question deprived defendant of his statutory right to peremptorily challenge the juror.
There is no contention that guilt was not established beyond a reasonable doubt and, therefore, the following factual summary is confined to those relevant to the issues raised.
The victim, a 15-year-old prostitute, was killed when she leaped from a third-floor window of defendant's apartment. At trial, defendant's signed confession was published to the jury and admitted into evidence. Defendant, a pimp, admitted that he had beaten the victim with a coat hanger and a five-foot-long "couple of inches" thick stick. The beating was inflicted as a punishment for the victim's "loose mouth" and "lolligagging." When the beating was interrupted, the victim broke away and attempted to escape, but she was unable to do so because a front gate was locked. Then, with defendant in pursuit brandishing the stick, the victim fled throughout the various rooms of the apartment, running finally into the dining room. There, defendant saw her standing near the window, stepping onto the window ledge, and jumping out the window to her death.
On the evening after the trial, following the jury's discharge, defense counsel encountered Eugene Johnson, one of the jurors in the case, as he exited the courthouse. Counsel asked the juror if he would mind talking with him about the deliberations. In reply to defense counsel's questions, Johnson stated that one of the women jurors had raised a question about the defendant's failure to testify but that the foreman of the jury told her that they were to disregard this, and that no further discussion was had concerning that issue. Johnson also told defense counsel that he "had seen things like that happen before," and that in his own particular experience, he had had a sister who was beaten and killed by a pimp at a time when he was seven years old. He also mentioned that the incident had no bearing on his decision at the trial. *fn1
At the hearing on defendant's motion for a new trial, Johnson was called as a witness for the defense. Johnson testified on direct examination that defense counsel had approached him, and that they had a conversation as described above. On cross-examination the State's Attorney asked Johnson whether despite what he had revealed to the court, he was able to render a fair and impartial verdict. Johnson responded affirmatively. He further stated that his experience had no bearing on his decision in the case, and that he had not discussed the incident with any other jurors. On redirect examination defense counsel questioned Johnson in the following manner:
"Q. Mr. Johnson, I spoke with you also yesterday regarding this matter, did I not?
Q. And when I spoke with you yesterday, you informed me that you had been to an attorney and been advised by him that you could be getting yourself into trouble by coming here to testify, is that right?
[ASSISTANT STATE'S ATTORNEY]: Objection.
THE COURT: The Court will sustain the objection to that question. That's beyond what is before the Court."
After arguments, the motion for a new trial was denied and sentencing hearing commenced.
• 1 We turn first to defendant's contention that the juror's failure to disclose that his sister had been the victim of a crime very similar to the one for which he was tried denied him of his right to a trial by a fair and impartial jury. While it is firmly established that an accused's right to trial by an impartial jury is a basic right (People v. Cole (1973), 54 Ill.2d 401, 298 N.E.2d 705), it is also recognized that a juror's failure to reveal potentially prejudicial information during voir dire, or even his false testimony during voir dire, does not automatically entitle a defendant to a new trial. (Pekelder v. Edgewater Automotive Co. (1977), 68 Ill.2d 136, 368 N.E.2d 900; People v. Logan (1980), 87 Ill. App.3d 351, 408 N.E.2d 1086; People v. Farris (1980), 82 Ill. App.3d 147, 402 N.E.2d 629.) In Pekelder, the Illinois Supreme Court confirmed that the standard to be applied in cases, such as the instant one, is that of actual prejudice. (68 Ill.2d 136, 139, 368 N.E.2d 900, 902.) A similar standard was recently upheld by the United States Supreme Court in Smith v. Phillips (1982), 455 U.S. 209, 71 L.Ed.2d 78, 102 S.Ct. 940. The court there stated that due process does not require that a new trial be granted every time a juror has been placed in a potentially compromising situation and the remedy for allegations of jury impartiality is a hearing in which defendant has the opportunity to prove actual bias on the part of the juror. (Smith; but see People v. Craig (1977), 47 Ill. App.3d 242, 361 N.E.2d 736, where the court held that the procedure to be used at the hearing on this issue rests ...