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09/28/89 the People of the State of v. Robert A. Cobb

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT A. COBB, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 1257, 189 Ill. App. 3d 86, 136 Ill. Dec. 482 1989.IL.1540

Appeal from the Circuit Court of Macon County; the Hon. Jerry L. Patton, Judge, presiding.

APPELLATE Judges:

JUSTICE STEIGMANN delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN

After a jury trial in Macon County, the defendant was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1) and sentenced to 30 years' imprisonment. The only issues raised on appeal pertain to jury selection: (1) whether the court erred during voir dire by not dismissing for cause a prospective juror who was the father of the prosecutor in charge of felony cases in Macon County who signed the information charging the defendant, and (2) whether the court erred in denying defense counsel's motion for additional peremptory challenges.

During voir dire, prospective juror Jacob Ahola (Jacob) disclosed that he was the father of Macon County Assistant State's Attorney Jack Ahola (Jack). When questioned by the court, Jacob stated that his son's position as an assistant State's Attorney would not affect his ability to be a fair and impartial juror. Jacob further stated that he would not owe his son any explanation for voting the way he did on the verdict and that he and Jack never discussed Jack's cases. Lastly, Jacob stated that he had no objection to placing the burden of proof on the State and would not hesitate to return a not guilty verdict if the State did not meet that burden.

Upon examination by defense counsel, Jacob acknowledged that his son was the assistant in charge of felony prosecutions. Jacob also stated that he was not acquainted with Macon County State's Attorney Larry Fichter or the two assistant State's Attorneys who were prosecuting this case. Further, Jacob stated that his son's employment in the State's Attorney's office would not make it difficult to be a fair juror.

While Jack signed the information charging the defendant with first degree murder, he took no part in the trial and never made any appearance in court. Nothing in the record shows Jacob knew that Jack signed the information or that Jack participated in this case.

After examination, defense counsel challenged Jacob for cause. The challenge was denied. Defense counsel then exercised a peremptory challenge and Jacob was excused. After defendant's peremptory challenges were exhausted, defense counsel requested additional peremptory challenges. This request was also denied.

At issue in this appeal is an application of the factors to be used to determine whether a prospective juror can be a fair and impartial juror. Illinois' leading case discussing these factors is People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705. The court in Cole stated the following:

"This issue [of the trial court's refusal to allow the defendant's challenge of the juror for cause] cannot be disposed of by the harmless-error rule . . .. The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal. (Chapman v. California, 386 U.S. 18; Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437.) The right to a jury trial guarantees to one accused of a crime a fair trial by a panel of impartial jurors. . . .

The burden of showing that the juror possesses a disqualifying state of mind is on the party challenging the juror. 'Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. . . .' [Citation.]

The determination of whether or not the prospective juror possesses the state of mind which will enable him to give to an accused a fair and impartial trial rests in the sound discretion of the trial Judge. His determination should not be set aside ...


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