APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
518 N.E.2d 1362, 165 Ill. App. 3d 289, 116 Ill. Dec. 382 1988.IL.135
Appeal from the Circuit Court of Macoupin County; the Hon. Joseph P. Koval, Judge, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On April 14, 1986, the circuit court of Macoupin County entered judgment on jury verdicts finding defendant Daniel Hines guilty of the following offenses: murder, aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, kidnapping, robbery, and unlawful restraint. Then, on June 23, 1986, the court sentenced defendant to a term of natural-life imprisonment for murder. In addition, the defendant received extended-term sentences of 60 years for aggravated criminal sexual assault, 30 years for aggravated kidnapping and 30 years for criminal sexual assault, all three terms to run consecutive to the natural-life sentence for murder. Finally, the court imposed concurrent extended terms of 14 years each for robbery and kidnapping and 6 years for unlawful restraint.
Defendant now appeals and claims the court committed error in: (1) denying his motion for a change of venue; (2) denying several of his challenges for cause for both impaneled and prospective jurors; (3) refusing to excuse one impaneled juror and replace him with an alternate; (4) receiving, at sentencing, evidence of the impact of the decedent's death upon her parents; (5) imposing a natural-life sentence for murder; (6) imposing extended-term sentences for all convictions other than murder; and (7) imposing consecutive sentences for aggravated criminal sexual assault, criminal sexual assault, and aggravated kidnapping. Defendant also contends the convictions for unlawful restraint, kidnapping, aggravated kidnapping, and criminal sexual assault should be vacated either because they (1) are included offenses of another crime for which he was convicted, or (2) arose out of a single transaction in which another crime was committed. We will deal separately with each of these issues under one of three subdivisions in this opinion.
First, however, although no question has been raised as to the sufficiency of the evidence, a brief summary of that evidence is necessary to an understanding of the issues. Most of the evidence of defendant's guilt came from the testimony of Michael Turner and a statement defendant had given to a law enforcement officer.
The evidence revealed the following chain of events. On July 13, 1985, defendant (Hines) and brothers Robert and Michael Turner devised a plan to "pick up" girls by use of a red "police light" on their car; they planned on flashing the light, thereby causing girls driving by in cars to stop. They would then pretend they were police officers and "arrest" the girls. In the late evening, they drove around the rural area of Macoupin County near Wilsonville and stopped along the roadside to wait for some girls to drive past. When decedent, age 16, drove by, they activated their red light, causing her to stop. They then "arrested" her, told her she would have to come with them, and drove her to a cornfield nearby. Robert and defendant then took her six or seven rows into that cornfield. There, Robert forced her to perform oral sex upon him, and then both of the men forced her to have intercourse with them. At some time Robert held his knife to the victim. Later, defendant left the cornfield and joined Michael by the side of the road.
Defendant's statement indicated that, while back at the road waiting for Robert to return, defendant heard the girl scream a few times and gasp for air. However, in his statement, he also asserted that he did not realize the victim had been killed until July 16, 1985, when Robert told him he had to stab through the victim's neck because he could not knock her out. Michael testified that, after defendant came out of the field, he heard a thumping sound and some gurgling noises but did not hear a scream. Michael said Robert then returned to the car carrying his knife and told defendant and him he had not hurt the victim, but it had been hard to knock her out.
The victim's body was found in the cornfield three days after she had been attacked. Evidence indicated she had died from stab wounds near her larynx which had severed her jugular vein. News articles submitted by defendant in his motion for change of venue indicated that the Turner brothers' sister had informed the police how the crime had been committed and where the girl's body and the suspects could be found. The three were then arrested three days after the occurrence. I, Defendant's first three contentions are all related to the sole question of whether he received a fair trial before an impartial jury.
Defendant first contends that, because this case received extensive publicity in the news media, he was unable to get a fair trial from an impartial jury in Macoupin County. As a result, he claims the jury ultimately chosen in his case was either presumptively or actually prejudiced against him. Since the trial court denied his numerous motions for change of venue, he maintains its decision violated both State law and due process.
One case defendant relies on as support for his actual prejudice argument is Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639. In that case, Irvin was accused of committing six murders in the Evansville, Indiana, area. Due to extensive coverage of the case by the media, the court allowed a change of venue to an adjoining, rural county. However, widespread publicity still prevailed. The news reported details surrounding that defendant's background, prior record, and his confession to the murders as well as various curbstone opinions as to his guilt and proper punishment.
The voir dire process in Irvin illuminated the strong prejudice which permeated the community. The selection of the jury alone lasted four weeks, and defense counsel exhausted all of his peremptory challenges. Out of 430 veniremen questioned during this process, almost 90% held some opinion as to defendant's guilt. In addition, two-thirds of the jurors who actually served on the panel believed defendant was guilty. Thus, even though each juror stated he could render an impartial decision despite his opinion, the Court accorded little weight to these statements given the pervasive amount of prejudice involved. The Court concluded that, "in light of the circumstances here the finding of impartiality [did] not meet constitutional standards." 366 U.S. at 728, 6 L. Ed. 2d at 759, 81 S. Ct. at 1645.
Although the instant case is somewhat similar to Irvin, we find it is more analogous to Murphy v. Florida (1975), 421 U.S. 794, 44 L. Ed. 2d 589, 95 S. Ct. 2031. Murphy involved the robbery trial of Jack Roland Murphy, a flamboyant criminal whom the press called "Murph the Surf." Because of his extravagant life-style and prior dealings, the press gave the case a lot of publicity. The media reported extensively on the defendant's prior convictions and the pending charges against him, but the articles which appeared were largely factual in nature. In addition, the majority of news coverage occurred seven months prior to the commencement of the trial.
During jury selection in Murphy, 20 of the total 78 veniremen questioned were dismissed as having already preJudged the defendant. The prosecution and defense excused 20 more peremptorily. Of those persons ultimately chosen to serve on the jury, only one juror suggested that his prior knowledge would make him predisposed to convict the defendant.
The Murphy Court concluded defendant "failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which he [complained] [permitted] an inference of actual prejudice." (421 U.S. at 803, 44 L. Ed. 2d at 597, 95 S. Ct. at 2038.) The surrounding circumstances did not support a finding that defendant did not receive a fair trial.
People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329, also bears some resemblance to the instant case. Olinger involved the gruesome murders of three individuals, an occurrence which received widespread publicity throughout Whiteside County, Illinois. Media coverage even included information otherwise inadmissible in a criminal trial. Nevertheless, the court stated that, under the circumstances, it could not conclude defendant failed to receive a fair trial due to the trial court's denial of his motion for a change of venue. Although many of the jurors questioned were familiar with the case, nothing indicated the jurors had knowledge of the prejudicial and inadmissible information.
Since the instant case involved the mysterious disappearance and brutal slaying of a young, innocent girl, it, too, gained immediate media coverage. Other facts which later developed generated further public interest. For instance, the three accused of the crime turned out to be local men who used a police light to stop and abduct the victim. In addition, the sister of two of the accused men told the police of their part in the crime; the news media then reported about the resultant family dissension.
Although some of the news articles relayed emotion-packed stories of the deceased and her family, most, like in Murphy, dealt only with the factual circumstances surrounding the incident and subsequent trials. Some articles even described safety tips for routine traffic stops without mentioning the case itself. Probably the most damaging articles for defendant, although involving information admissible at trial, were the ones which discussed his attempted jailbreak. However, some news articles presented relied on by defendant were in newspapers published outside Macoupin County and not shown to have wide circulation in the county. No news report covered anything as prejudicial or injurious as a televised jailhouse confession (Rideau v. Louisiana (1963), 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417) or the leakage of polygraph test results (People v. Taylor (1984), 101 Ill. 2d 377, 462 N.E.2d 478). Moreover, although the media coverage was intense and protracted initially, the publicity had apparently waned somewhat by the time defendant's trial began.
In order to gauge community sentiment over his client's case, defense counsel requested and received approval for a public opinion poll to be conducted. The pollster found that, out of 287 people surveyed, 81% knew of the case by name. More importantly, of those persons who knew of the case, 73% thought the police arrested the right people, and 64% believed those arrested were guilty. Over half of those polled had heard of the case 25 times or more and could name the people charged with the crimes.
Upon commencement of the trial, the court took precautionary measures during voir dire by questioning prospective jurors individually and extensively about the depth of their knowledge and possible bias. The parties examined 135 veniremen during the 14-day selection process. Although most had heard of the case, the information they possessed was mostly factual in nature. Only 25% of the prospective jurors were excused for cause because they held a preconceived opinion as to defendant's guilt, quite unlike the situation present in Irvin.
Of those jurors ultimately impaneled here, all had heard or read about the case, some in great detail. Three persons chosen to serve as jurors also expressed doubt as to defendant's innocence: (1) Dennis Lahey responded affirmatively after being asked by defense counsel whether he thought defendant was probably guilty of the crime; (2) after reading about the case in the paper and hearing about it from others, juror Allen Johnson just "assumed [defendant was guilty] because he was arrested for it," although he was unsure whether he had "formed an opinion or not"; and (3) finally, juror Joel Warford stated he had formed an opinion as to defendant's guilt prior to being called to serve on jury duty, and his opinion was "that everything -- all the evidence pointed to guilt." At the Conclusion of their questioning, however, all impaneled jurors said they could set aside information which they had seen or heard and would decide the case strictly upon the evidence presented in court.
Based on the foregoing, we conclude the trial court's denial of his motions for change of venue did not deny defendant his right to a ...