Appeal from the Circuit Court of Sangamon County; the Hon.
Jerry S. Rhodes, Judge, presiding.
PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Because of grave error in the way the jury was selected, we must reverse the conviction and remand this case for a new trial.
On Saturday, June 9, 1979, at approximately 5:30 a.m., two Springfield residents living in the vicinity of a local gasoline service station heard a single gunshot, and then saw a young white man run south down an alley. Bernard Ebel described the man he saw as being 17 to 21 years of age, medium build, with black or dark hair over his ears. He said that the man was clad in black pants and a white sport shirt with blue bands around the sleeves. Ebel stated that he could not make an identification because he saw only a side and back view of the individual.
Harold Martin was standing in his backyard feeding pigeons when he saw an individual attired in a manner similar to the person seen by Ebel. He saw the man's face for a few seconds. He estimated that the person he saw was 5 feet 7 inches or 5 feet 9 inches tall and 18 or 19 years old. He noticed that the individual was wearing high-heeled boots and had either wet or greasy hair which was slicked back and parted on the left side.
Shortly after the sighting, Martin began to drive to work and passed the gas station. On his way by he noticed a man whom he later discovered was Timothy Meisner. Meisner was lying on the pavement at the station next to a van. Martin tried to awaken the man, but when he touched him the man's arm fell to his right side, revealing a spot of blood. At this time police were called, and Martin and Ebel assisted them in making a composite sketch of the person they had seen running down the alley.
Dr. Grant Johnson, a pathologist, was called to the scene at approximately 6:20 a.m. and found Meisner lying on his back in front of the passenger side of a van. An air hose, hubcap, and screwdriver were found near the tire on the driver's side of the van. Johnson also found a wallet between Meisner's arm and chest with an identification card but no currency. No bullet casings were found at the scene of the crime.
Dr. Johnson eventually performed an autopsy on Meisner which determined that the victim had been shot with a single .22-caliber bullet, the bullet having passed through the upper portion of the right arm and major internal organs before coming to rest in the lower left portion of his chest. The entrance wound was minimal, leaving blood around the wound on Meisner's T-shirt but not elsewhere on his clothing or on the pavement. In Johnson's opinion, an assailant had shot Meisner from above the shoulder from a distance of three inches to two feet. Johnson felt that the wound was consistent with a scenario in which Meisner was kneeling and the assailant was standing. Johnson was also of the opinion that Meisner would have died within a minute after being shot, but noted that people with wounds inflicted by small-caliber bullets have been known to maintain life functions for a rather long period of time after the original wound. Dr. Johnson was of the opinion that had this happened, it would have been possible for Meisner to have been in one position when shot and then moved to another position before dying.
In the early morning hours of Monday, June 11, two off-duty police officers were driving north on North 3rd Street in Springfield. They saw defendant John Britz. Both thought that he resembled the composite sketch of the person who had been seen fleeing the shooting scene two days earlier. They turned the car they were in around, but by the time they made the turn the defendant was gone. The officers continued to drive around Lincoln Park and soon saw Britz walking up a hill near a lagoon. At this point they identified themselves to him and called for an on-duty detective to come out in a squad car and question the defendant. Two detectives responded and told the defendant that he bore a striking resemblance to the composite sketch of the murder suspect in the Meisner case. After further questioning, Britz told them that he had just been released from Memorial Hospital in Springfield after a drug overdose. After determining the defendant's identity, one of the detectives gave him a ride to his destination at 2:45 a.m.
Later that same day, defendant contacted the Youth Services Bureau in Springfield. Although he spoke with several counselors during the course of the day, the defendant later called one of them — Cheryl Penman — and told her that "somebody had been murdered and that he had done this."
At this point, the investigation in the Meisner homicide began to focus on Britz. Springfield Detective Marcia Lange-Kemph went to Penman and asked her to consent to the use of an eavesdropping device on one of the telephones at the Youth Services Bureau. Penman consented. On July 3, 1979, Lange-Kemph executed an application for a court order which authorized the use of an eavesdropping device to overhear and record telephonic conversations between defendant and Penman. The authorization allowed the use of the eavesdropping device from 5 p.m. on July 3, to 4:59 p.m. on July 13. The device was installed on the telephone of another counselor at the Bureau. The scheme developed between Penman and the police was that whenever Britz telephoned the Bureau's answering service and asked to speak to Penman, she would return the defendant's call over the taped phone and engage him in conversations designed to elicit information about Meisner's death. Throughout this period, Detective Lange-Kemph coached Penman on how to draw information from the defendant.
Twelve conversations between defendant and Penman were recorded between July 6 and July 12. In each of these conversations, defendant repeatedly denied complicity in Meisner's death. At all times during these conversations, Penman told the defendant that she was truly concerned about him and advised him to confide in her and get anything that was bothering him off his chest. At various points throughout these conversations Penman also appealed to the defendant's masculinity, at one point telling him that she found him sexually attractive and thought that his involvement with the police was exciting. The final conversation lasted from 7:45 p.m. to 8:20 p.m. on July 12. It ended with Penman urging the defendant to talk to the police and the defendant agreeing to meet her at the police station to accomplish this purpose.
Britz had contacted the police twice earlier on July 12 to discuss the murder of Timothy Meisner. He was advised of his constitutional rights only before the third interview that day. The first appearance was an unexpected stop at the detective bureau, where defendant spoke with Detectives Lange-Kemph and Moss from 9:10 a.m. to 11 a.m. Following this conversation, the defendant went with the detectives to his father's junkyard. He gave the police a tour of the junkyard and led them to an area where he indicated he had had target practice with a .22-caliber weapon. The officers gathered certain items they thought might be connected with the murder. The second contact on July 12 came around noon, when the defendant telephoned the officers from the junkyard and told them he knew of someone who might have information that would be useful to them in their investigation. The third meeting came after the final phone call to Cheryl Penman. Penman, Detectives Lange-Kemph and Tolley and Police Chief DeMarco met defendant at the detective bureau between 10:30 and 11:30 p.m. Lange-Kemph advised Britz of his Miranda rights, which he said he understood and wished to waive.
At this point defendant told detectives that he had seen a man who resembled the composite of the murderer at the home of a friend. Lange-Kemph asked defendant if he knew the man's name, to which defendant responded that he did not. Lange-Kemph replied, "That's a lot of bull." She indicated that she knew defendant had paid a friend of his $50 to tell police that someone other than the defendant was involved in the homicide. When faced with this revelation, defendant admitted that it was true.
Britz then told the detectives that on the night of the murder he had been at the home of his cousin. Lange-Kemph again questioned the veracity of the alibi, and the defendant admitted that it was untrue. At this point the defendant became defensive, stating, "You'll have to prove it." He asked to be left alone with Penman, and the detectives left the two in the interrogation room. Britz then ingested a pill which he claimed was "star acid." When the detectives returned to the room, defendant told them there were only two people who knew what had happened when Meisner was murdered. He said that he was one of the people and that "him" — gesturing toward the ceiling — was the other. He asked if he was free to go and the detectives explained that since he had come to the station voluntarily, he was free to leave voluntarily. He then left.
On July 13, defendant was arrested on a charge of theft based on a complaint filed by his father. At approximately 12:20 p.m. on July 14, the defendant (who was now incarcerated in the county jail) asked to speak to Detective Lange-Kamph and Chief DeMarco. The interview took place in DeMarco's office. Britz was orally advised of his rights by Lange-Kemph, who then presented him with a written statement of those rights. She read the statement to him, and the defendant read it to himself. Britz indicated that he understood his rights and executed a written waiver. Defendant then gave an inculpatory statement in which he said that he felt he had committed the murder. He recalled being at the Clark station in the early morning hours of June 9, hearing one shot, and carrying some kind of weapon. He also recalled running south down an alley toward 3rd Street, then under a viaduct, and finally in a northwesterly direction towards the Sangamon River. He talked to police for approximately one hour and then was returned to jail.
On July 14, the defendant, still in jail on the theft charge, asked to talk further with detectives. The request came at 8 a.m., and the defendant then talked with Detectives Tolley and Lange-Kemph and Chief DeMarco. Lange-Kemph orally admonished defendant of his Miranda rights and furnished him a written document enumerating those rights. Britz read the document, said he understood its contents, and signed a written waiver. During the interview that followed, defendant told the officers several details about his commission of the crime and what he did afterwards. He said that on June 9 he was angry and under the influence of PCP, an animal tranquilizer. He said that he approached the gasoline station from the rear and walked towards the men's restroom on the west side. He saw a van parked near an air pump and a man putting air into one of the tires. He stated that he walked up behind the man and shot him once with a .22-caliber revolver from a distance of four to six feet. He removed the victim's billfold, taking money out of it, and then dropped the wallet near the body. After this, defendant jumped over a fence which bordered part of the service station. He then reiterated his previous statement concerning the route he took following the crime, including his eventually ending up at the Sangamon River, where he said he threw the pistol he had used into the water.
Chief DeMarco asked the defendant if there was any doubt in his mind that he shot Meisner, to which defendant replied, "[N]o, I did it." From this point on, defendant was considered to be in custody on a murder charge.
Shortly after the defendant finished giving his statement to the police at the station, Chief DeMarco suggested that he return to the scene of the crime with the detectives and re-enact the crime. At the crime scene, Lange-Kemph again admonished defendant of his constitutional rights, which Britz said he understood and wished to waive. He then reenacted the crime. During this reenactment, he provided more details to the statement he had given previously. He indicated that Meisner was kneeling next to his truck when shot and then fell face down with his arms outstretched. The reenactment lasted from approximately 10 a.m. to 11:30 a.m., at which point defendant was returned to jail. Based on the facts known to the police at this time, the defendant was charged with murder, but those charges were dropped approximately one month later.
There was no further contact between the defendant and police for three years. At this point, the police obtained a search warrant based on a statement given by the defendant's brother which inculpated the defendant in the Meisner murder. On June 9, 1982, police officers, pursuant to the search warrant, went to the defendant's father's junkyard and removed two spent .22 projectiles from an inside wall of a trailer. On September 9, 1982, defendant told police that he had shot a bullet from a pistol into the wall of the trailer. At about 2 p.m. on September 9, 1982, defendant telephoned police at headquarters and asked to meet with Detective Daily. Daily spoke briefly with Britz and his wife at the detective bureau and then went with the defendant and his wife to the junkyard owned by defendant's father. Britz agreed to meet with the detective later in the evening, at which time he gave a statement, following Miranda warnings, in which he again stated his alibi that at the time of the homicide he was at a garage owned by his cousin, talking on the phone with Cheryl Penman. Defendant stated that his brother, who had given the police the information upon which the search warrant had been based, was in and out all night long and came back to the garage at approximately 5:30 or 6 in the morning and said something about a kid that had been killed. Britz told police that he may have been a witness to the homicide and that he was willing to testify against his brother. Based on the further information and the two spent .22 projectiles, the defendant was charged by complaint with Meisner's murder and incarcerated on September 23, 1982.
On October 6, while still incarcerated on the murder charge, defendant telephoned Detective Pennell at home and asked Detectives Pennell and Daily to come talk with him at the jail. The detectives arrived at 6:55 p.m. and spoke with defendant in a room at the jail. Pennell told Britz about his rights and provided him with a written waiver which defendant signed.
Using the reverse side of the rights waiver as an easel, defendant drew a picture of the crime scene and asked Pennell to play the part of Timothy Meisner in order for him to illustrate how he committed the murder. Pennell kneeled on the floor and pretended to fill the tire of a van with air. Britz walked behind Pennell and using his finger, which he stated was a .22-caliber weapon, pretended to shoot Pennell in the upper portion of his right shoulder. Britz further stated that he took currency from Meisner's wallet and looked at the identification card in it before dropping it next to the body. He indicated that he ran south into the alleyway next to the station and then to his father's business at 3rd and Carpenter about seven or eight blocks away. Pennell left the room momentarily, at which point Britz told Detective Daily, "Al, I didn't mean to kill him. I didn't mean to kill him." The interview concluded at approximately 10:20 p.m.
Britz's trial began in April of 1983. Voir dire was conducted on April 25, 1983. The first issue raised by defendant concerns the manner in which voir dire was conducted by the trial court and is the issue which ...