People v. Brinn

• Citation: 32 Ill.2d 232,204 N.E.2d 724
• Decision Date: 21 January 1965
• Docket Number: 36962,Nos. 36928,s. 36928
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Alan BRINN et al., Plaintiffs in Error. The PEOPLE of the State of Illinois, Defendant in Error, v. Allen J. CLEMENTS et al., Plaintiffs in Error.
• Court: Supreme Court of Illinois

Page 724

204 N.E.2d 724

32 Ill.2d 232

The PEOPLE of the State of Illinois, Defendant in Error, v. Alan BRINN et al., Plaintiffs in Error.

The PEOPLE of the State of Illinois, Defendant in Error, v. Allen J. CLEMENTS et al., Plaintiffs in Error.

Nos. 36928, 36962.

Supreme Court of Illinois.

Jan. 21, 1965.

As Modified on Denial of Rehearing March 17, 1965.

Julius Lucius Echeles, Stephen Levy, and Marshall Schwarzbach, Chicago, for plaintiffs in error, Alan Brinn and others (Julius Lucius Echeles, Chicago, of counsel).

Bellows, Bellows & Magidson, Chicago, for plaintiffs in error, Allen J. Clements and others.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred. G. Leach and George W. Kenney, Asst. Attys. Gen., and Elmer C. Kissane, Matthew J. Moran, and William J. Nellis, Asst. State's Attys., of counsel), for appellee.

SOLFISBURG, Justice.

On March 25, 1960, a Cook County grand jury returned an indictment charging eight Chicago police officers, Allen Clements, Alan Brinn, Frank Faraci, Alex Karras, Sol Karras, Peter Beeftink, Henry Mulea, and Patrick Groark with conspiracy to commit burglary and conspiracy to receive stolen property. The indictment contained 18 counts, 14 of which were nolle prossed after a criminal court judge sustained a motion to quash the other four counts. The State appealed the order quashing the indictment in part and this court reversed and remanded for trial. People v. Beeftink, 21 Ill.2d 282, 171 N.E.2d 632.

After remand the defendants proceeded to trial on the four counts. One count charged that they conspired with Richard Morrison and Floyd Wilde on or about October 1, 1958, to commit burglary by forcibly breaking and entering into certain buildings and carrying away property contained therein. Another court alleged the same conspiracy and charged that pursuant thereto, the defendants feloniously entered the premises of Western Tire and Auto Stores, Inc., Self Furniture Co., Firestone Stores Inc., General Radio and Appliance Store, Danny's Squirrel Lounge, Anderson Marine Sports, and Lee Automotive Supply Co. The other two counts charged the defendants conspired to receive stolen property and alleged that pursuant thereto, the defendants received property rightfully belonging to such establishments.

A bill of particulars was furnished on the first count and specified similar offenses with respect to a Sinclair gas station at 5452 North Clark Street, Stetler's Music Store, and Walgreen's Drug Store at 7510 North Western Avenue.

Prior to trial, all charges against Richard Morrison and Floyd Wilde were nolle prossed. Each of the remaining eight defendants was found guilty as charged in the indictment. All were tried by a jury in a joint trial, except Patrick Groark, who had waived trial by jury. Neither Beeftink, Mulea nor Groark have sought review of their convictions. The other five defendants were sentenced to the Illinois State Penitentiary. Brinn received a sentence to 1 [32 Ill.2d 235] to 3 years; Faraci, 2 to 5 years; Clements, 2 to 5 years; Alex Karras, 2 to 5 years; Sol Karras, 2 to 3 years.

On this consolidated appeal the defendants argue that the trial court erred in failing to grant a new trial because of prejudicial publicity. They further argue that the trial court erred in failing to quash search warrants and suppress certain evidence; in failing to grant a severance; and in permitting the jury to set the penalty for the crimes.

In addition to these common claims of error, defendant Clements argues that there was a fatal variance in the indictment as to him; that the court erred in admitting certain evidence as to him; and in denying him sufficient time to prepare post-trial motions.

We first must consider the effect of the publicity surrounding the trial. It is clear that the unfortunate scandal that gave rise to these indictments was the subject of widespread publicity in the press for more than a year prior to the trial.

Defendants were arraigned on February 15, 1961, after the return of the mandate from this court. The cause was set for trial by agreement on May 15 and again reset for June 12, 1961. At that time the defendants moved for a further continuance, and some of the defendants also asked that the cause be transferred to another county because of the prejudice of Cook County residents, although no motion was filed for such change of venue in accordance with the statute. (Ill.Rev.Stat.1961, chap. 146, pars. 20, 22-24.) Defendant Faraci sought to have the trial judge use his contempt power to control the reporting of the trial.

The trial court denied all the requests of defendants and proceeded with the selection of the jury. For seven days a thorough examination was conducted to prospective jurors with regard to any views they might have due to the reading of newspaper articles. Approximately 180 prospective jurors were examined on the question of the influence of publicity. Eighty were excused for cause of the trial court upon group inquiries. Twenty-six were excused for reason of the influence of publicity, and the remainder for other causes. One hundred prospective jurors were individually examined by counsel and twenty stated that they at one time formed some opinion as to the guilt or innocence of the defendants, and were excused.

When the last of the twelve jurors was accepted the defendants had twenty peremptory challengers remaining. On the basis of the entire record on voir dire examination, we do not believe that the defendants have shown such a pervasive prejudice created by pretrial publicity that would prevent the selection of an impartial jury. The fact that defendants did not challenge any of the jurors selected is strong evidence that they were convinced that the jurors were impartial and unbiased. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed. 98.

It therefore follows that the trial judge did not abuse his discretion in denying defendant's pretrial motions in relation to prejudicial publicity.

Defendants also contend that the publicity during the actual trial was prejudicial and deprived them of a fair trial. In support of this argument defendants have pointed out almost daily banner headlines from Chicago newspapers relating to the trial. In addition to the effect of the totality of attendant publicity, defendants point out three specific instances of prejudicial material.

The first instance was a headline appearing after the trial judge had denied defendants' motion for a directed verdict at the close of the State's case. The front page headline stated: 'Cop Judge Decides: 'I Can Believe Thief,' Police Lose Acquittal Bid.'

The second example was an apparently false front page headline appearing during the trial stating: 'Two Cops Offer Guilty Plea.'

Further headlines appeared prior to final arguments quoting Morrison to the effect that 'Cops Tried To Kill Me.'

The issue of newspaper publicity was raised by almost daily motions for a mistrial, requests that the trial judge exercise supervisory powers over the press, and requests for individual examination of each juror outside the presence of the others. All such requests were denied.

This argument raises the serious problem of the possible conflict between the fundamental right of a free press and a public trial and the equally basic right that the accused should be tried by a fair and impartial jury.

One solution to the problem of eliminating improper influences on jurors during a trial is the complete seclusion of the jury, and we think that the defendants, on the particular facts of this case, had the right to insist on such seclusion. People v. Wilson, 400 Ill. 603, 610-611, 81 N.E.2d 445; People v. Schneider, 362 Ill. 478, 200 N.E. 321.

At the beginning of the trial counsel for defendant Faraci moved that the jury be locked up, and the State joined in the request. The court took the motion under advisement and asked that it be renewed eacy day. Thereafter the combined defense counsel elected to have the jury separate and later in the trial defendant Faraci declined to renew his motion for seclusion of the jury even though the trial court advised that such a motion would be granted.

The trial court also admonished the jury at length at the beginning and end of each day of trial as to their duty as jurors to remain free from outside influences and to refrain from reading or viewing matters relating to the trial. In addition the trial judge interrogated the jury each day as to their exposure to external influences, and the jurors repeatedly denied such exposure.

At no time during the trial did not defendants offer and evidence that a juror had seen any of the objectionable headlines.

Prior to final arguments, one of defense counsel requested that defendants' attorneys be permitted to conduct an individual voir dire examination of each juror concerning their exposure to news media, and suggested many proposed lines of inquiry. In view of the precautions and interrogations by the trial judge heretofore noted, we do not believe the trial court abused its discretion in refusing to permit the procedure suggested.

We have examined the facts of the cases cited by defendants where mistrials were granted because of prejudicial publicity during trial, and find that there was either clear proof that some of the jurors had read the offending articles (Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; People v. Kenzik, 9 Ill.2d 204, 137 N.E.2d 270; People v. Hryciuk, 5 Ill.2d 176, 125 N.E.2d 61), or there was exposure to a prejudicial report and a complete failure to instruct or admonish the jury not to consider anything they may have read about the case. People v. Murawski, 394 Ill. 236, 68 N.E.2d 272.

In People v. Gambino, 12 Ill.2d 29, at pages 36-37, 145 N.E.2d 42 at page 46, this court affirmed the denial of a motion for a mistrial on the ground of prejudicial publicity, stating:

'The...