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05/14/97 PEOPLE STATE ILLINOIS v. SELBERT D.

May 14, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SELBERT D. RODGERS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Christian County. No. 94-CF-18. Honorable S. Gene Schwarm, Judge, presiding.

As Corrected June 3, 1997.

The Honorable Justice Goldenhersh delivered the opinion of the court. Kuehn, P.j., and Maag, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

After a jury trial in the circuit court of Christian County defendant, Selbert D. Rodgers, was convicted of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 1992)) and criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 1992)) against the victim, A.B., defendant's granddaughter. Defendant was sentenced to 12 years in the Department of Corrections on count I and five years in the Department of Corrections on count II, to run concurrently to count I. On appeal, defendant raises three issues: (1) whether the trial court erred in denying his motion to discharge the jury panel, after a news conference at which potential jurors were present was held inside the courthouse by the victim's mother alleging that she was abused by defendant during her childhood, (2) whether the trial court erred in denying defendant's motion for a new trial based upon a juror's failure to disclose during voir dire that she had an association with defendant's family, and (3) whether the trial court erred in denying defendant's motion for a continuance. We affirm.

FACTS

On March 3, 1994, defendant was charged by information with the aforementioned offenses involving his granddaughter. The first count alleged that defendant:

"Committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in that the defendant committed an act of sexual conduct with a female who was under 18 years of age when the act was committed and who is herein identified as A.B., and, further, with the defendant being a family member, that is the grandfather of A.B., in that the defendant did intentionally or knowingly touch or fondle, either directly or through clothing, the sex organ of A.B. for the purpose of sexual gratification or arousal of the defendant in the month of February of 1994 ***."

The second count alleged that defendant committed the offense of criminal sexual assault against the same victim "in that the defendant did place the sex organ of the defendant in contact with or into the sex organ of A.B., in the month of February of 1994 ***."

While voir dire was still in progress, another judge in the courthouse notified the trial judge in the instant case that a television interview was being conducted in the hallway of the courthouse concerning the instant charges. The victim's mother was allegedly relaying to a television news reporting crew that she had been sexually abused by defendant during her own childhood. The State's Attorney later reported that a support person from the rape intervention crisis service was standing close to where the interview was being conducted and the support person thought that juror number 9 heard the interview. Juror number 9 had already been accepted on the panel. The State's Attorney informed the court that the State had used its last peremptory challenge and, therefore, if the court did not strike juror number 9 for cause, the State would ask that the panel be discharged. At this point, 10 jurors were already chosen to be on this jury. The trial court inquired as to whether any of these 10 jurors overheard the interview. The only juror who admitted being in the hallway when the interview was conducted was juror number 9, but juror number 9 denied hearing any part of the interview.

The court was satisfied the jury was not tainted, but defense counsel moved that the jury be discharged. The trial court then asked the judge who witnessed the interview whether he remembered which prospective jurors were within earshot of the interview. That judge reported that he saw three prospective jurors within earshot of the interview, and he gave the trial judge the badge numbers of those particular jurors. None of the three were currently empaneled, nor were they in the jury box awaiting questioning. Ultimately, the trial court denied defendant's motion to discharge the panel but allowed defendant to dismiss juror number 9 for cause. The trial court inquired of the remaining jurors already empaneled whether they heard any secondhand information about the interview in the hallway. None of the nine jurors already empaneled responded affirmatively.

The trial court noted that it would ask other venirepersons if they were present in the hallway when the interview took place. At that point, two more jurors and one alternate still needed to be chosen. Out of the next four venirepersons interviewed, the third of the four, juror number 20, admitted to being in the hallway when the interview was conducted but denied overhearing any part of it. The two prospective jurors before number 20 were chosen for the jury. The defense attorney then utilized his strike against juror number 20 as an alternate, and the State's Attorney utilized its strike against the final prospective juror out of that group of four. The next venireperson was chosen as the alternate. Neither the State nor the defense had any questions for him. The trial court then released the jury for the day, but not before admonishing them not to watch any local television news that evening, listen to any radio broadcasts, or read any newspaper articles concerning the instant case.

The following morning, the trial court inquired of the alternate whether he was in the hallway when the interview was conducted, and he answered he was not. The trial court also inquired generally as to whether any of the jurors heard anything on the television or radio the previous evening. There was no response.

[The following material is nonpublishable under Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July ...


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