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08/16/96 PEOPLE STATE ILLINOIS v. STEVE BENNETT

August 16, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEVE BENNETT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93-CF-2130. Honorable Stephen D. White Judge, Presiding.

As Corrected September 9, 1996. Released for Publication September 20, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Presiding Justice Holdridge delivered the opinion of the court. McCUSKEY and Slater, J.j., concur.

The opinion of the court was delivered by: Holdridge

PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the court:

Defendant, Steve Bennett, was charged by indictment with attempt first degree murder (count I), aggravated battery with a firearm (count II), armed violence (count III), aggravated discharge of a firearm (counts IV & V), and unlawful sale of fire arms (count VI). A Will County jury acquitted defendant of count VI, but found him guilty on all remaining counts. The circuit court sentenced him to concurrent terms of 14 years imprisonment on all counts. Defendant appeals, contending that he was denied his constitutional right to be present during a portion of voir dire, and that he was convicted of more than one offense arising out of the same physical act. We remand the cause to the circuit court of Will County for a new trial.

VOIR DIRE

This case involved extensive publicity. During voir dire, the court asked potential jurors whether they had read or heard anything about the case. After 14 out of 29 jurors responded in the affirmative, upon defense counsel's suggestion, the court took them into a back hallway for individual questioning.

Initially, counsel, a court reporter, and defendant were present in the hallway, however, the court ordered defendant back inside. In doing so, the court stated that there was a security risk in having him in the hallway, and that potential jurors would be influenced by the presence of an armed guard along with him. The court offered defense counsel all the time he needed to relay information to defendant, but counsel objected, noting defendant's constitutional right to be present was being violated.

The court proceeded to ask the 14 potential jurors whether they had any preconceived notions about the case, whether they could base their decisions on the evidence, and whether they could give both parties a fair trial. Counsel was permitted to question hesitant jurors, and as a result of their responses, some jurors were excused for cause both on the court's motion, and on defense counsel's motion.

Proceedings then continued in open court. Upon learning that one potential juror knew defendant and his parents, the court, over defense counsel's continuing objection, questioned this person outside of defendant's presence, with counsel and a court reporter present.

Upon returning to the courtroom, the court stated that it would be asking potential jurors whether they or any family member had been a victim of, charged with, or convicted of a crime. The court gave them the opportunity to respond in private, and over defense counsel's continuing objection, two potential jurors were questioned outside of defendant's presence, with counsel and a court reporter present.

Thereafter, defense counsel moved for a mistrial based upon comments made by the court and one potential juror during in-court voir dire. The motion was granted, but after consulting with defendant, defense counsel withdrew the motion. Although the People argued that a mistrial was in order, defense counsel maintained that he and defendant were fully capable of protecting defendant's rights. The court noted that defendant's choice to withdraw the motion showed his satisfaction with the venire and all of the questions asked. The People moved for a mistrial, which the court denied.

Voir dire continued in open court, and all potential jurors stated that they would be fair and impartial, and would follow the law given them. A jury was selected, with five of those selected having been questioned outside of defendant's presence. Defendant and the People both used six peremptory challenges in selection of the jury, and one more each in selection of alternate jurors.

In addition to defendant's constitutional objections during voir dire, he filed a post-trial motion reiterating his objections, which the court denied. On appeal, defendant first contends that he was denied his ...


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