APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SAM L. AMIRANTE, JUDGE PRESIDING.
Released for Publication August 13, 1996.
The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Egan, J., concur.
The opinion of the court was delivered by: Mcnamara
JUSTICE McNAMARA delivered the opinion of the court:
Following a jury trial, defendant Cottrell Green was found guilty of attempted first degree murder, armed violence, aggravated battery and aggravated battery with a firearm. The trial court sentenced him to concurrent terms of 21 years' imprisonment for attempted first degree murder and armed violence and to concurrent terms of five years' imprisonment for aggravated battery and seven years' imprisonment for aggravated battery with a firearm.
The charges against defendant were that on March 30, 1992, he deliberately shot Matthew Hrycko at Matthew's residence. Defendant was alleged to have been on the porch when he fired into the home. As a result of the shootings, Matthew was hospitalized and had surgery. At trial, Matthew, his mother, Elaine, and his sister, Kathryn, identified defendant as the shooter. Each confirmed that he or she identified defendant in a photo array and in a lineup.
Catherine Christopher, defendant's niece, testified for defendant at trial that he was at her mother's home on the evening of March 30, 1992.
On appeal, defendant contends that the trial court committed reversible error when it denied his motion to suppress identifications because he was deprived of his sixth and fourteenth amendment rights to have counsel present during a lineup; that the trial judge abused his discretion when he denied a motion by defense counsel to reexamine three venirepersons whose answers on their jury cards were inconsistent with their implied answers in open court; that he was denied a fair trial due to an egregious case of prosecutorial misconduct where the prosecutor urged the jury to convict defendant based on the prosecutor's ability to recognize another person; and that his convictions and sentences on three of the four counts must be vacated because the offenses were all carved from the same physical act and the remaining count should be remanded for resentencing.
We first consider defendant's contention that his conviction must be reversed and the cause remanded for a new trial because the trial judge abused his discretion when he denied a defense motion to reopen voir dire and reexamine three venirepersons whose answers on their jury cards were inconsistent with their answers in open court.
During the course of voir dire, defense counsel, in chambers, asked the court to supplement the voir dire, explaining that he noticed that 21 venirepersons' implied responses in open court were inconsistent with their responses on their jury cards. The trial judge asked defense counsel to provide him with an example. When defense counsel attempted to do so, the court cut counsel off by stating that the juror cards were made available to the parties before the lunch break. The judge stated, however, that defense counsel may have been in another room when he made the announcement. Defense counsel responded that he had been unaware the cards were available.
The court also stated that it had previously asked the parties for follow-up questions and "that was not done." The judge then asked specifically what questions defense counsel wanted him to ask of what jurors. The defense noted, among other things, that Patricia Laurent, Winifred Lynn and R. A. Doolin stated on their jury cards that they were the victims of a crime, but they never stated that in open court in response to the court's questions. Defense counsel explained that he did not have enough information based upon the inconsistent answers given. The court, despite its earlier agreement to do so, refused to supplement the voir dire in order to clarify these three jurors' inconsistent answers, finding that it was satisfied that the jurors were questioned sufficiently. The defense had nine peremptory challenges and used all of them. The above-named venirepersons whose answers were inconsistent were seated on the jury.
Defendant argues that a short reexamination of these three jurors would have revealed whether he or she had been a victim of crimes similar to the ones that Hrycko suffered in this case, satisfying the purpose of voir dire, which is to expose any potential bias or prejudice. Defendant asserts that because this issue involves defendant's right to an impartial jury, it is not subject to the harmless error rule.
The right to a jury trial guarantees a defendant a fair trial by a panel of impartial jurors. People v. Mitchell, 121 Ill. App. 3d 193, 459 N.E.2d 351, 76 Ill. Dec. 714 (1984). The purpose of voir dire examination is to provide counsel with the opportunity to determine whether the minds of prospective jurors are free from bias and prejudice, and the "limitation of such examination constitutes reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors." People v. Mitchell, 121 Ill. App. 3d at 194-95, 459 N.E.2d at 353.
Where voir dire is in progress or has just been completed and it comes to the attention of the trial court that there are facts which contradict the answers given on voir dire, proper procedure calls for an inquiry. People v. Mitchell, 121 Ill. App. 3d 193, 459 N.E.2d 351, 76 Ill. Dec. 714. "Considerations of logic, judicial economy and fair trial ...