Appeal from the Circuit Court of Peoria County; the Hon.
Robert E. Manning, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
During the Christmas season of 1980, Lisa Conn, a young lady, presumably with a long life awaiting her, was slain in a brutal manner. The slaying occurred on December 6, 1980, in the back room of the Zip-Tone Cleaners in Peoria where Lisa was employed. Lisa's throat was slashed and the cash register of the business was looted.
Initially the police were without suspects. The police worked tirelessly in their efforts to solve the crime and ultimately conducted over 3,000 interviews. The citizens of Peoria and surrounding environs were justifiably outraged and a reward fund was established which eventually totaled over $20,000. Newspapers, television stations and one radio station gave unabated coverage of this case from the time of Lisa's death up to and throughout the trial of the defendant, Alan R. Taylor, who was charged with and tried for the commission of the crime. The news media coverage may well have been the most extensive of any crime ever committed in the city of Peoria.
One of the suspects interviewed by the police was the defendant, who at the time was 13 years of age. The police conducted several interrogations of him. In his final statement, Taylor confessed that he had cut Lisa's throat with a knife, looted the cash register and left the premises. Somewhat exculpatory in tone, however, he indicated that the throat cutting occurred because Lisa was struggling against the knife as he held it to her throat. Taylor also said that he was aided in the crime by a friend of his, John Gaskins. He said that Gaskins also had a knife. He said that the stab wound in the area of Lisa's heart occurred when Lisa kicked Gaskins in the leg, causing Gaskins to lose his balance and fall into Lisa with his knife.
Charged and tried as an adult, Taylor was convicted by a jury of murder and armed robbery. He was sentenced to a 35-year term of imprisonment for the murder and a 30-year term for the armed robbery, with both terms to run concurrently.
The foregoing is a brief statement of the facts concerning the murder of Lisa Conn and the trial of the defendant for that crime. Further facts and procedural matters will be set forth as they become pertinent to the determination of this appeal.
A number of issues are raised in this appeal and our attention is first directed to the defendant's claim that reversible error was committed because the trial court abused its discretion in denying his motion for change of venue because of prejudicial publicity, which was extensive and which continued up to and during the trial.
Placing this issue in its proper perspective, it must be noted that on April 9 and 10 of 1981, some four months after the murder, a public opinion survey was conducted at a large shopping mall in the city of Peoria. The uncontroverted result of the poll was that 98% of 382 people polled had heard of the case; 89% stated they had heard of it many times; 61% were able to state the defendant's age; 72% believed that the police had arrested the right person; and 53% thought that the defendant was guilty.
In considering the results of the poll it can only be logically observed that such percentages of knowledge concerning a crime could be expected in a small or modest-sized community; however, in a large metropolitan area such percentages illustrate the pervasive effect of saturation news coverage.
• 1 The general rule of law applicable to motions for change of venue is that the decision as to whether a change of venue should or should not be granted rests in the sound discretion of the trial court, and refusal to grant a change of venue is not error if later events indicate that the defendant received a fair and impartial trial. (People v. Yonder (1969), 44 Ill.2d 376, 256 N.E.2d 321.) However, an old supreme court case from which our State establishes some law, still viable, which sets some guidelines to be followed by a trial judge in granting or denying a motion for change of venue. (See People v. Pfanschmidt (1914), 262 Ill. 411, 104 N.E. 804.) In Pfanschmidt the court indicated that if affidavits before the court created a reasonable apprehension that an accused could not receive a fair trial, then a change of venue should be granted.
Relying, however, upon the law set forth in the case of Yonder we will examine the record to ascertain whether the defendant did receive a fair trial. Both pretrial and during-trial news coverage disclosed that a companion of the defendant was also a suspect in the murder. The companion, John Gaskins, according to pretrial news coverage, was released from custody after he had passed a lie detector test. Similarly it was reported that the defendant had taken a lie detector test and one article reported that he had failed it while another stated that it was inconclusive.
The "little black box" or lie testing equipment, while apparently not infallible, has been used in criminal investigations for many years and has been adopted by some employers for use in screening applicants for employment. In the minds of laymen it has achieved the status of being the "last word" in determining the truthfulness or untruthfulness of an examinee.
Such publicity is highly prejudicial and in fact prevented a fair trial. Counsel for defendant was compelled to use all peremptory challenges and many challenges for cause were denied. All prospective jurors questioned by the court admitted to having heard of the case and some of those selected knew details concerning the offense and the defendant's alleged involvement. In selecting the jury the magic words were the statement by a prospective juror that he or she had no opinion about the case and could be fair to both sides. Is this statement a magic one? We believe not and neither does the United States Supreme Court, which stated:
"No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father." Irvin v. Dowd (1961), 366 U.S. 717, 728, 6 L.Ed.2d 751, 759, 81 S.Ct. 1639, 1645.
A case of some similarity to the one now before us is Goins v. McKeen (6th Cir. 1979), 605 F.2d 947. In Goins four jurors read an article during trial which revealed information which was both inadmissible and strongly probative of guilt. All four assured the court that they could decide the case solely on the evidence presented. The Sixth Circuit court found the trial court's reliance on these assurances to be insufficient and of inherent prejudice to the defendant.
In the instant case two jurors had knowledge about the case which was prejudicial and inadmissible. Two jurors during examination stated that the co-defendant (Gaskins) had been released after he passed a lie detector test. One stated that he had therefore concluded that Gaskins was innocent. Three other jurors were aware of Gaskins' release but attributed it to lack of evidence. Not all knowledge of a case would per se disqualify a prospective juror; however, in the instant case some of the jurors were too knowledgeable about matters too volatile.
In regard to the five jurors referred to, they were seated after the defendant had exhausted his 10 peremptory challenges and the court had denied a request for additional peremptory challenges. The defendant challenged the seating of the jurors for cause; however, these challenges were denied.
• 2 The record in this case amply supports the conclusion that the motion for change of venue should have been granted. The record does show that the trial judge made a strenuous and dedicated effort to obtain for the defendant an impartial jury; however, as the result of the news media coverage of the crime and case which saturated Peoria and an area of some miles in all directions from the city, the trial judge was faced with a "no-win" situation.
The change of venue problem which we address is not an isolated one, but on the contrary is one which has pervaded our nation. Justice Frankfurter in a concurring opinion in the case of Irvin made the following observation:
"More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.
Not a Term passes without this Court being importuned to review convictions, had in States throughout the country, in which substantial claims are made that a jury trial has been distorted because of inflammatory newspaper accounts — too often, as in this case, with the prosecutor's collaboration — exerting pressures upon potential jurors before trial and even during the course of trial, thereby making it extremely difficult, if not impossible, to secure a jury capable of taking in, free of prepossessions, evidence submitted in open court. Indeed such extraneous influences, in violation of the decencies guaranteed by our Constitution, are sometimes so powerful that an accused is forced, as a practical matter, to forego trial by jury. [Citation.] For one reason or another this Court does not undertake to review all such envenomed state prosecutions. But, again and again, such disregard of fundamental fairness is so flagrant that the Court is compelled, as it was only a week ago, to reverse a conviction in which prejudicial newspaper intrusion has poisoned the outcome. [Citations.] This Court has not yet decided that the fair administration of criminal justice must be subordinated to another safeguard of our constitutional system — freedom of the press, properly conceived. The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade." Irvin v. Dowd (1961), 366 U.S. 717, 729-30, 6 L.Ed.2d 751, 760-61, 81 S.Ct. 1639, 1646-47.
We hasten to add that in the instant case the record is barren of any collaboration or misconduct on the part of the office of the prosecutor. Until such time that there is a solution to the problem of such magnitude as presented in this case the trial courts> will be compelled to grant motions for change of venue and along with such ruling the attendant added expense and inconvenience. We are aware of and subscribe to the old adage that a defendant cannot expect a perfect trial, a trial free from all errors; however, he can expect from the judicial system that every effort will be made to provide him with a fair trial.
The denial of trial by an impartial jury is not a technical defect but is the denial of a right imbedded in both our Federal and State constitutions. Such a right comprises a great ...