APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
521 N.E.2d 185, 167 Ill. App. 3d 324, 118 Ill. Dec. 117 1988.IL.351
Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.
JUSTICE HOPF delivered the opinion of the court. DUNN and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF
Defendant, Ronald Edwards, was charged by information with murder, voluntary manslaughter, attempted murder, and armed violence. A jury found defendant not guilty of murder but guilty of voluntary manslaughter, attempted murder, and armed violence. The trial court entered a judgment of conviction on all three verdicts but imposed concurrent eight-year terms on only two of the convictions, voluntary manslaughter and armed violence. Defendant appeals from these convictions.
In this court, defendant contends that: (1) the trial court improperly excused a juror for cause; (2) the trial court abused its discretion in denying defendant's motions for continuance; (3) section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1), which allows the use of prior inconsistent statements as substantive evidence, violates the separation of powers doctrine and is, therefore, unconstitutional; and (4) the trial court erred in entering a judgment of conviction on both the armed violence and the attempted murder guilty verdicts.
On October 28, 1985, defendant was charged by information with the offenses of murder, voluntary manslaughter, attempted murder, and armed violence. The case was set for trial on December 16, 1985, but on December 9 defendant moved to continue the case. The case was continued until January 6, 1986. On December 11, 1985, the State moved to continue the case until February 10, 1986. Defendant objected, commenting that a continuance would have the effect of setting the case over for more than 1 1/2 months. The court granted the continuance.
On January 29, 1986, defendant filed a motion for continuance alleging, as a reason for the motion, the fact that his counsel would be out of town on February 10, 1986. At the hearing on the motion, it was disclosed that defense counsel had planned a vacation during the week of February 10. Counsel for the defendant also indicated that the defense was not prepared for trial. The court denied defendant's motion after expressing its concern over the likelihood of obtaining the presence of certain witnesses if the case were continued from February 10. The court pointed out that in order to guarantee the presence of these witnesses on February 10, the date set for trial, the court had already had to have the witnesses picked up on body attachments and then released on recognizance bonds with orders to appear to testify on February 10.
Additionally, the court expressed its displeasure over the fact that defense counsel had apparently planned his vacation in November or December but had failed to advise the court of these plans and had allowed the case to progress without any indication that the defense did not intend to go to trial on February 10.
On February 5, 1986, defense counsel moved again for a continuance. The court denied the motion. Defendant then filed a motion for substitution of counsel which the court allowed, based on the new counsel's promise to be ready for trial on February 10.
On February 10, the newly substituted counsel moved to continue the case, arguing that although he had been diligently investigating the case, he needed more time to complete the investigation since little investigation of the case had been accomplished by the previous attorneys. The court continued the case to February 18.
On February 18 jury selection began. During the voir dire a juror stated that he would not be able to decide the case fairly unless he knew what the possible punishments would be. The State asked that the juror be excused for cause. The court inquired further of the juror, explaining that the function of the jury was to determine the guilt or innocence of the defendant regardless of the penalties that could be imposed. The juror responded that he would be unable to be impartial unless he knew whether or not the death penalty was a possible punishment. The court excused the juror, stating the juror's excusal was based on the fact that the juror was unwilling to follow the law under certain circumstances.
On February 19, 1986, the trial commenced. Very briefly summarized, the evidence presented at trial showed that on October 13, 1985, at around 5 p.m., Carlton Williams, Jeff Williams, Clyde Lewis, Bret Steve Price, and Steve Taylor went to a house located at 603 South McAlister in Waukegan. A number of people were already at that house, including the defendant, Gary Beckwith, Adrian Sherrod, and Reginald Handy. When Carlton Williams' group arrived at the house, Williams challenged Gary Beckwith to a fight.
Defendant decided to get involved in the fight. The testimony varied as to whether Carlton Williams first fought Beckwith and then fought the defendant or whether Williams fought the defendant before fighting Beckwith. All the testimony, however, indicated that Carlton fought both defendant and Beckwith, knocking both of them repeatedly to the ground. Defendant's face was bleeding, and he was crying as his girlfriend, Bobbie Vaughn, pulled Carlton Williams off of defendant.
After fighting defendant and Beckwith, Carlton Williams began fighting Adrian Sherrod. It was during this fight while Carlton Williams was on top of Sherrod and hitting him that Williams was shot.
Some witnesses testified that they heard someone yell, "Pop him, Clyde," while Carlton Williams and Sherrod were fighting. One of these witnesses, Reginald Handy, stated that he saw Clyde Lewis pull out a gun, aim it at Sherrod and fire two shots. Other witnesses testified that they saw defendant shoot Carlton Williams while Williams was fighting with Sherrod. Some of these witnesses also saw defendant fire shots at Bret Steve Price and Jeff Williams as they ran away from the scene. Jeff Williams was shot in the back as he fled.
One witness, Johnnie Gooden, testified that after the shootings she saw defendant enter the house with a gun in his hand, saying, "Here, take this," and that Gary Beckwith took the gun from defendant. Another witness, Cheri Cox, related that after defendant came into the house, she heard him discussing with several men whether he should turn himself in. The witness also heard defendant say, "That's good for him, that's why I popped him."
The State was permitted, over defense objection, to use prior inconsistent statements of two of its own witnesses, Aaron Whitfield and Bobbie Vaughn, as substantive evidence. Contrary to their testimony at trial, both witnesses stated in those prior statements that defendant shot Carlton Williams.
The jury found defendant not guilty of the murder of Carlton Williams but guilty of voluntary manslaughter. Additionally, the jury returned guilty verdicts against defendant for the attempted murder and armed violence as to Jeff Williams. The trial court entered judgment on the three convictions. Following a sentencing hearing on April 16, 1986, defendant was sentenced to concurrent eight-year terms for the voluntary manslaughter conviction and the armed violence conviction. No sentence was imposed for the attempted murder conviction.
Defendant first contends that the trial court improperly excused a juror for cause when that juror indicated he could not decide the instant case fairly without knowing what possible punishments were applicable. Specifically, the juror informed the court that he could not be impartial if the death penalty was a possibility. Defendant maintains that the court's refusal to inform this juror of the death penalty's inapplicability to the present case resulted in the improper excusal of a fair and impartial juror.
The purpose of voir dire is to assure the selection of an impartial jury. (People v. Jackson (1977), 69 Ill. 2d 252, 260; People v. Chamness (1984), 129 Ill. App. 3d 871, 873.) The trial court is granted broad discretion in conducting and managing voir dire (107 Ill. 2d R. 234), and the determination whether to ask certain questions of prospective jurors is within this discretion. (People v. Sequoia Books, Inc. (1987), 160 Ill. App. 3d 750, 757.) It is also within the sound discretion of the trial court to decide whether to grant a challenge for cause (People v. Pecina (1985), 132 Ill. App. 3d 948, 954), and a ruling excusing a juror for cause should not be set aside unless it is against the manifest weight of evidence. (People v. Singletary (1979), 73 Ill. App. 3d 239, 246.) Under the facts presented in the instant case, we do not believe it was an abuse of discretion to excuse the juror in question from serving on the panel.
During voir dire, the prosecutor asked Kenneth Jacobs, the juror in issue, what his verdict would be if the charge of murder was proved beyond a reasonable doubt. Jacobs responded: "It would be based upon what the punishment is." The prosecutor, through questioning, attempted to explain to Jacobs that, in any particular case, the Judge, and not the jury, determines the punishment. The prosecutor then inquired of Jacobs whether he could decide the case fairly without knowing what the possible punishments would be. Jacobs responded, "No."
The prosecutor in a sidebar conference expressed his concern to the court that Jacobs be excused for cause due to his admission that he could not be fair. Alternatively, the prosecutor asked the court to inquire further and determine whether Jacobs could be a fair juror. The court then proceeded to question the juror, and the following conversation occurred:
"THE COURT: The jury will not be apprised as to what the possible punishments if any are in this case. That is something that is reserved strictly for the determination of the court. The jury's function in this case will be to determine what the facts are. So now, with that information, will you be able to act as a fair and impartial juror, knowing that you will not be told what the possible punishments are, nor are you allowed to know what they are?
THE JUROR: I think I would like to ask if there is a death penalty in Illinois.
THE JUROR: I don't know. Am I entitled to know that?
THE COURT: The function that you have is to make a determination of guilt or innocence, and that function of guilty or innocence is irregardless of what the possible penalties might be; so without any, without, since that is something that is beyond the scope of the province of the jury, can you act as ...