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02/20/87 the People of the State of v. Donald R. Lego

February 20, 1987





507 N.E.2d 800, 116 Ill. 2d 323, 107 Ill. Dec. 647 1987.IL.188

Appeal from the Circuit Court of Will County, the Hon. Michael A. Orenic, Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court. JUSTICE SIMON, Dissenting.


In a four-count indictment returned in the circuit court of Will County, defendant, Donald Richard Lego, was charged with the murder of Mary Mae Johnson by stabbing and beating her (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)), and while committing the forcible felonies of burglary with intent to commit murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)), burglary with intent to commit theft (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)), and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)). Following a jury trial, verdicts were returned finding defendant guilty on all counts. Pursuant to section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1), at the request of the People, a death penalty hearing was held before the same jury. The jury unanimously found the existence of an aggravating factor set forth in section 9-1(b) (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)), and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death on all four counts of murder. The sentence was stayed (87 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d R. 603).

On August 25, 1983, Mary Mae Johnson, an 82-year-old widow, was found dead in her home in Joliet. She had been stabbed repeatedly and bludgeoned. A basement window and window well had been broken. Recovered at the victim's home were a white shirt similar to the one worn by defendant in a photograph taken earlier on the morning of the murder; a hand-rolled cigarette, cigarette filter, and a cigarette butt which, a forensic serologist stated, "evidenced" an O-type secreter, the same type as defendant; an envelope bearing defendant's name and address and containing photographs of defendant's family. A forensic scientist testified that fingerprints found on the door knob, the photographs in the envelope, and on the hand-rolled cigarette, compared to defendant's. The victim's son testified that money which she kept in a bag in her upstairs closet was missing. There was testimony at trial that defendant had done roofing work for Mrs. Johnson some three or four years earlier, for which she paid him $2,000 to $5,000 in cash.

Defendant contends first that the circuit court's denial of his motion to change venue based on extensive adverse pretrial media coverage deprived him of a trial by a fair and impartial jury. He contends that because three of the jurors admitted during voir dire to having heard about the case through the media, and because the trial court failed to mitigate the effects of this potentially prejudicial publicity, he did not receive a trial by an impartial jury free from outside influences. (Nebraska Press Association v. Stuart (1976), 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791; Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) Citing People v. Taylor (1984), 101 Ill. 2d 377, defendant argues, too, that the jurors' assertions that they had formed no opinion as to the guilt or innocence of defendant are not controlling and that the evidence of the "peculiar nature" of the publicized material showed that it was inherently prejudicial to defendant's case.

The People respond that defendant has not pinpointed a single specific instance of lack of fairness in the jury selection or shown that the publicity given the case by the media influenced any particular juror. (People v. Yonder (1969), 44 Ill. 2d 376, 388, cert. denied (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094.) They point out that defendant did not, during voir dire, challenge any of the prospective jurors of whom he now complains.

We agree with the People that defendant was not prejudiced by adverse media coverage. The record contains 12 articles from local newspapers and the Chicago Tribune. All are dated August or September 1983, approximately the time of defendant's arrest. None is dated March 1984, the time of defendant's trial. The only indication of media coverage at approximately the time of trial was the report of defendant's remark made on March 7, 1984, that at 7 a.m. in a newscast on WJRC in Joliet, it was stated that defendant's trial was to begin that day.

We find no indications of juror prejudice which may have been caused by exposure to adverse media coverage. Of the 12 jurors selected, nine had heard nothing about the trial prior to voir dire. Of the remaining three, although one was somewhat equivocal, all stated under oath that they could render an impartial verdict based on the law and evidence without regard to anything they might have read or heard concerning the case.

In People v. Speck (1968), 41 Ill. 2d 177, modified (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279, the record contained numerous newspaper articles and records of television and radio comments about the case. Media coverage was much more extensive than that here, including an account of Speck's previous criminal record. Of the 12 jurors selected, all had heard or read about the case, but none had preconceived notions of the defendant's guilt. The court held that the question to be determined was "not the amount of publicity in a particular case, but whether the defendant in that case received a fair and impartial trial." (41 Ill. 2d 177, 183.) Relying on Irvin v. Dowd (1961), 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642-43, the court said:

"'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" People v. Speck (1968), 41 Ill. 2d 177, 184.

The court concluded that, when applying these standards, "we focus our inquiry on the ultimate question of whether the jurors at the defendant's trial demonstrated that they were able to lay aside any impression or opinion which they might have had and render a verdict based on the evidence rendered in court." 41 Ill. 2d 177, 184.

Juror exposure to media coverage was further discussed in People v. Gacy (1984), 103 Ill. 2d 1, cert. denied (1985), 470 U.S. 1037, 84 L. Ed. 2d 799, 105 S. Ct. 1410. The court found the sequestration of jurors in such a highly publicized case to be unnecessary because it might have placed a great burden on the jury members, possibly angering them and prejudicing them against the defendant. The court held, too, that "[d]efendant had no right to be tried in the county which was most likely to be favorably disposed to defendant and his theory of defense." (103 Ill. 2d 1, 43; see also People v. Sanchez (1986), Nos. 61239, 63683 cons.) Upon examination of the record in the light of the standards enunciated in Speck and Gacy, we conclude that, although the crime was of a sensational nature and the publicity extensive, defendant received a trial from a fair and impartial jury. Our Conclusion that the jury was not prejudiced finds further support, in that the record shows that the circuit court repeatedly admonished the jurors to avoid media coverage of the trial and to avoid discussing the case among themselves or with others.

We have considered defendant's contentions in the light of the additional authorities filed after leave given to supplement his brief. We have examined Coleman v. Kemp (11th Cir. 1985), 778 F. 2d 1487, and find it clearly distinguishable. In Coleman, the conviction arose out of an occurrence in which five members of a farm family were murdered and another raped and murdered. More than 40 pages of the reported opinion are devoted to describing the comments, primarily newspaper articles, disseminated over a period of months. The court, citing Rideau v. Louisiana (1963), 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417, held that the plaintiff had adduced evidence sufficient to meet "the extremely high standard necessary for a successful claim of presumed prejudice." (Coleman v. Kemp (11th Cir. 1985), 778 F. 2d 1487, 1543.) The evidence here falls far short of meeting the "extremely high standard."

We consider next defendant's contention that the circuit court's denial of his motion for a bill of particulars and of his request for the issuance of subpoenas precluded his adequately preparing his defense, thus violating his rights under the sixth and fourteenth amendments of the United States Constitution. In his motion for a bill of particulars, defendant requested information regarding the date and time of the offense and the instrument used to commit the crime.

We agree with the People that the resolution of the question whether the People should be required to furnish defendant a bill of particulars is within the sound discretion of the circuit court. (People v. Curtis (1968), 41 Ill. 2d 147, 148.) Only where there has been a clear abuse of discretion will the denial of a motion for a bill of particulars be held to be error. (People v. Tsukas (1950), 406 Ill. 613, 617.) The purpose of a bill of particulars is to adequately inform the defendant of the nature of the accusation against him. (People v. Curtis (1968), 41 Ill. 2d 147, 148.) "here an indictment sufficiently informs the defendant of the offense charged against him there is no need for a bill of particulars . . .." (People v. Tsukas (1950), 406 Ill. 613, 616-17.) We hold that the indictment sufficiently informed defendant of the offense with which he was charged; and denial of the motion for a bill of particulars alleging the time, date, and instrument used in the crime was not error. We note that defendant has failed to explain in what manner the denial of the motion impeded his preparation of his defense.

Defendant also contends he was precluded from adequately preparing his defense because the circuit court quashed 89 pretrial subpoenas. Among those subpoenaed were 25% of the personnel of the Will County sheriff's office, a person identified only by the name "Charles," and unnamed members of the Chicago press. Defendant has not stated in what manner the quashing of the subpoenas impeded the preparation of his defense, and the apparent indiscriminate choice of persons to subpoena would support the Conclusion that defendant was attempting to use subpoena service as a discovery tool. The use of subpoenas to ensure the attendance of witnesses is an important part of our system of jurisprudence, but it exists constitutionally and statutorily independent of our discovery rules. Defendant has failed to show that the witnesses desired were material to his defense, and their testimonies relevant. (People v. Robinson (1961), 22 Ill. 2d 162, 170, cert. denied (1961), 368 U.S. 857, 7 L. Ed. 2d 55, 82 S. Ct. 97.) Appropriate discovery procedures were available to defendant, and we hold that the circuit court did not err in quashing the subpoenas.

Citing People v. Zehr (1984), 103 Ill. 2d 472, defendant urges that the circuit court's refusal to ask prospective jurors during voir dire if they believed in defendant's presumption of innocence was an abuse of discretion which mandates reversal of defendant's conviction.

In People v. Britz (1986), 112 Ill. 2d 314, 319, we said: "As the holding in Zehr represented a change in Illinois law it is given prospective application." Zehr was decided after the trial here. The voir dire examination was properly conducted under the provisions of Rule 234, which as we noted in Britz "explicitly prohibited questions during the voir dire examination which 'directly or indirectly concern[ed] matters of law or instructions.' (87 Ill. 2d R. 234.)" 112 Ill. 2d 314, 319.

Defendant contends next that the circuit court erred in compelling him to produce tape recordings made by defendant's investigators of interviews with eight witnesses listed by the People. Relying on People ex rel. Bowman v. Woodward (1976), 63 Ill. 2d 382, defendant argues that it was error to order disclosure of information which he did not plan to disclose at trial. He contends that the order violated his constitutional right against self-incrimination and was contrary to the work-product rule. We do not agree.

Woodward is factually inapposite, and involved an order compelling the defendant to produce statements and reports prepared at defendant's request by expert witnesses. We find controlling the decision in United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160, and as stated in Woodward hold that statements of third parties elicited by the defendant's investigator were discoverable, and the People properly invoked the court's inherent power to require production of those statements. The constitutional privilege against self-incrimination is personal to defendant and did not extend to the statements taken of the witnesses.

We find defendant's contentions concerning the violation of the work-product rule to be without merit. The work-product rule recognized by the Supreme Court in Hickman v. Taylor (1947), 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385, for well-established reasons which need not be repeated here, protects from discovery the mental processes of an attorney in the preparation of his client's case. The verbatim statements of witnesses obtained by the investigator here do not fall within the scope of protection afforded by the rule.

We consider next defendant's contention that comments made by the circuit court, the court's repetitive admonishing of defendant, and the court's obvious disdain for defendant, all in the presence of the jury, resulted in prejudice which denied him a fair trial. The record shows that defendant insisted on acting as his own counsel and displayed little interest in assistance offered by "stand by" counsel appointed by the court. The record shows that despite defendant's lengthy arguments and statements, repetitious and time-wasting cross-examination, and numerous meaningless objections, the court exercised remarkable restraint. The comments of which defendant complains were elicited by his conduct and his contentions are without merit.

We consider next defendant's contention that the incourt identification of defendant by Dorsey Spencer, a witness called by the People, was highly suggestive, thereby depriving defendant of due process. During ...

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