Appeal from the Circuit Court of Cook County. Honorable WILLIAM J. HIBBLER, Judge Presiding.
The Honorable Justice Buckley delivered the opinion of the court: Wolfson and Braden, JJ., concur.
The opinion of the court was delivered by: Buckley
JUSTICE BUCKLEY delivered the opinion of the court:
After a second jury trial, defendant, Ryan Pendleton, was found guilty of first-degree murder on January 25, 1993. Defendant was sentenced to a single term of 40 years' imprisonment in the Illinois Department of Corrections. Defendant presents two arguments on appeal: (1) he was denied a fair trial under the Illinois Constitution's due process clause because he was forced to exercise two of his peremptory challenges to excuse two jurors who should have been excused for cause by the trial court; and (2) the trial court abused its discretion by imposing defendant's 40 year sentence.
On October 15, 1991, George Fife was shot and killed in front of Lou's Lounge at 2871 East 75th Street. Defendant was arrested and charged with first-degree murder. Following a mistrial, defendant was tried by a second jury, found guilty, and sentenced to 40 years imprisonment for first-degree murder.
On January 21, 1993, jury selection began in the second trial. During the trial court's preliminary comments to the venire members concerning burdens of proof and presumptions of innocence, Carol Passowic stepped forward and stated that she was afraid she would become nervous and confused listening to witnesses testify. She also stated that she had a tendency to believe that if a case came as far as a trial that the defendant was probably guilty. The court stated that her beliefs were improper and explained:
"COURT: *** Under our law as Mr. Pendleton is here he is no different than you or I. Right now he is presumed to be innocent of this charge.
Someone has made an accusation is it your feeling now because an accusation has been made you can't listen to the evidence and decide whether or not that accusation is truthful or not?
PROSPECTIVE JUROR PASSOWIC: Yes.
COURT: You don't think you can do that?
PROSPECTIVE JUROR PASSOWIC: No.
COURT: Based merely upon the fact that he has been accused?
PROSPECTIVE JUROR PASSOWIC: And all of the work that goes into getting to this point.
COURT: Okay. Thank you, when you reach the jury box we'll talk about it."
The trial judge began individual questioning of the first 14 venire members. The third prospective juror, Lorene Reed expressed her distaste for guns and those who use them. She initially stated that she would not be able to consider a gun as just another fact in the case. She explained that her feelings stemmed from a past experience of having one held against her head. Upon further questioning, she stated that she would not find defendant guilty solely because a gun was used in the alleged crime if there was no evidence that defendant used a gun. The court responded:
"COURT: Well, that's all I'm asking you. You're saying you don't like guns and therefore it's going to influence you. Certainly it would influence you if the evidence was that person, Number A, took a gun and shot you in the head or shot somebody in the head then you may be influenced by that. But if the evidence is that a person is on the ground, he is shot and he is dead there has got to be other facts to convince you that Mr. Pendleton is guilty or not guilty of anything.
So, all I'm asking is that you not allow your feelings about guns to overbear your judgment and your assessment of ...