People v. Berry

• Decision Date: 18 May 1967
• Docket Number: No. 40119,40119
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Marvin Dale BERRY, Appellant.
• Court: Illinois Supreme Court

Page 591

226 N.E.2d 591

37 Ill.2d 329

The PEOPLE of the State of Illinois, Appellee, v. Marvin Dale BERRY, Appellant.

No. 40119.

Supreme Court of Illinois.

May 18, 1967.

John R. Sprague, John R. Sprague, Jr., and Ronald A. Niemann, Belleville, for appellant.

William G. Clark, Atty. Gen., Springfield (Fred G. Leach, Asst. Atty. Gen., of counsel), for appellee.

KLINGBIEL, Justice.

Defendant, Marvin Dale Berry, was tried by jury in the circuit court of Madison County, convicted of the crime of burglary, and sentenced to the penitentiary for a term of not less than five nor more than ten years. Jointly indicted and tried with him were two co-defendants, Clarence Barthelemy, who also was convicted but received probation, and Richard Hudson, who was acquitted. Defendant Berry has appealed, contending that he was denied his constitutional rights to a fair and impartial trial by reason of prejudicial pretrial publicity and the fact that he was denied a severance from his co-defendants.

The crime charged is a burglary that occurred in Edwardsville at approximately 5:45 A.M. on August 27, 1959. A patrolman surprised three men in the process of breaking into a service station. As two of them fled he fired two shots but was unable to apprehend them. Defendant Hudson was found inside the building and on information furnished by him the other two defendants were arrested in Barthelemy's apartment a few hours later.

In the news coverage of the story on the day of the crime and the day after, Berry was referred to as a former convict, a notorious hold-up man, a habitual criminal and a menace to society. Reference was made to the fact that he was presently out on bond pending his appeal of a previous robbery conviction and that a search of Barthelemy's apartment was made in an effort to recover guns taken in a recent burglary in which police believed Berry may have participated. Hudson's implication of his two co-defendants, their subsequent arrest, and details of the burglary were likewise reported. Short follow-up stories were published after the arraignment of defendants, the revocation of Berry's appeal bond and commitment to the penitentiary on the previous robbery case, the appointment of counsel, a trial continuance, and Berry's petition for a change of venue. The last article complained of is a short editorial that appeared in an Alton paper on December 28 commenting on the petition for change of venue to the effect that perhaps the case would have to be taken to Chicago where 'his kind would get lost in the myriads like him' and he wouldn't be singled out for newspaper attention.

Defendant contends that in view of this publicity he was entitled to a change of venue as a matter of right in that it must be presumed that such publicity gave rise to reasonable grounds for fear that the inhabitants of Madison County would be prejudiced against him and unable to give him a fair and impartial trial. We do not believe this to be a fair statement of the rule. Exposure of a crime and the background of an accused to publicity does not necessarily lead to the conclusion that all the inhabitants of a community must automatically be considered infected with prejudice toward the accused. To so state is to preclude the literate from jury service, and in turn, to put a premium on national notoriety as a means of avoiding trial anywhere. To the contrary, the rule is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Meyers, 381 Ill. 156, 44 N.E. 870; People v. Witte, 350 Ill. 558, 183 N.E. 622.

In applying this rule each case must be considered under its own facts. Obviously, this case is not in any way similar to the United States Supreme Court cases cited by defendant, (Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751). In those cases 'massive, pervasive and prejudicial publicity' saturated the community and carried over and through the trials. Aroused public passion and prejudice were clearly demonstrated and clearly evident. Here, the trial court was presented with a motion for a change of venue supported only by a number of newspaper clippings and an affidavit of the defendant that he did not believe he could receive a fair trial in the county. Unless one accepts the automatic-presumption theory of defendant the affidavit and clippings reveal nothing as to the temperament of the community. In fact, the bulk of the clippings are legitimate news stories of the crime, published the same day or the day following, and the motion was not filed nor the trial held until approximately four months later. That delay alone could be considered as a sufficient time lapse to dissipate any feeling of prejudice whether real or imagined, and in the absence of any contrary indication we cannot say that the trial court had any reasonable grounds whatsoever to believe that defendant could not get a fair and impartial trial in Madison County. People v. Wilson, 29 Ill.2d 82, 193...