People v. Brumfield

• Decision Date: 26 August 1977
• Docket Number: No. 76-226,76-226
• Citation: 9 Ill.Dec. 619,51 Ill.App.3d 637,366 N.E.2d 1130
• Parties: , 9 Ill.Dec. 619 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael BRUMFIELD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1130

366 N.E.2d 1130

51 Ill.App.3d 637, 9 Ill.Dec. 619

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael BRUMFIELD, Defendant-Appellant.

No. 76-226.

Appellate Court of Illinois, Third District.

Aug. 26, 1977.

Mark W. Burkhalter, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Ruth Anne Perley, Edward F. Petka, State's Attys., Joliet, for plaintiff-appellee.

STENGEL, Presiding Justice.

Defendant Michael Brumfield was convicted of burglary after a jury trial in the Circuit Court of Will County and received a two to ten year prison term. The sole issue on appeal is whether the trial court committed reversible error by refusing defense counsel the opportunity to directly examine prospective jurors.

The trial court informed the parties prior to selecting a jury that it would not permit them to directly question prospective jurors based on its authority under amended Supreme Court Rule 234 (Ill.Rev.Stat.1975, ch. 110A, par. 234). The record in this case does not reveal that counsel for the defendant submitted any questions to the judge for him to ask the jurors, nor does the record reveal whether or not the defendant exhausted his peremptory challenges. Amended Rule 234, which became effective on July 1, 1975, states that:

"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions."

Rule 234 is made applicable to criminal cases by Supreme Court Rule 431 (Ill.Rev.Stat.1975, ch. 110A, par. 431).

Defense counsel asserted a right to directly examine jurors under amended section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 115-4(f) ), but his motion was denied. Amended section 115-4(f), which became effective on October 1, 1975, provides in part that:

" * * * Each opposing counsel has the right to conduct his own voir dire examination of each prospective juror for the purpose of determining such juror's qualifications, bias and prejudice, or freedom therefrom."

Since it is evident that a conflict exists between Rule 234 and the statute, the issue thus presented raises some interesting questions about the respective constitutional powers of the legislature and judiciary to regulate trial practice. The defendant contends that amended section 115-4(f) reflects a proper exercise of legislative power which supersedes the conflicting supreme court rule. The State, on the other hand, maintains that section 115-4(f) unconstitutionally infringes on the courts' inherent rule-making authority. Before discussing this separation of powers question, however, we think our initial inquiry ought to be whether or not there is an independent constitutional right to directly voir dire prospective jurors in a criminal case. For if such right exists then Supreme Court Rule 234 is, of necessity, unconstitutional. Diversey Liquidating Corp. v. Neunkirchen (1939), 370 Ill. 523, 19 N.E.2d 363.

The right to a jury trial as guaranteed by the 1970 constitution is exactly the same right as was guaranteed by the previous 1870, 1848 and 1818 Illinois Constitutions. The Illinois Constitution of 1970 contains two sections concerning jury trials. Article I, section 13 (Ill.Const.1970, art. I, § 13), states that, "The right of trial by jury as heretofore enjoyed shall remain inviolate." Except for punctuation changes this provision is the same as article II, section 5, of the 1870 constitution. (Ill.Const.1870, art. II, § 5.) The provision should therefore be interpreted as before. Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 292 N.E.2d 540.

In People v. Kolep (1963), 29 Ill.2d 116, 193 N.E.2d 753, the court held that this provision, which is applicable to both civil and criminal cases, guarantees a criminal defendant the right to have the facts in controversy determined by 12 impartial jurors. While an impartial jury is undoubtedly a constitutional prerequisite to any plan regulating voir dire examination, article I, section 13, does not necessarily bolster the defendant's position. In fact, as we will later discuss, the respective positions of the State and defendant in this case reflect the on-going public debate over the best method of selecting jurors.

We also doubt whether the words "as heretofore enjoyed" contained in this section offer any particular help to defendant's case. These words have been viewed as restricting the class of cases where a right to jury trial is available (Seifert v. Standard Paving Co. (1976), 64 Ill.2d 109, 355 N.E.2d 537; Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 292 N.E.2d 540), and the substantive right guaranteed by this provision should be defined by examining the English common law. (Grace v. Howlett (1972), 51 Ill.2d 478, 283 N.E.2d 474.) In England, however, the practice has always been that a voir dire examination may be conducted only after a challenge has been exercised and in support of that challenge. See Millar, Civil Procedure of the Trial Court in Historical Prospective, pp. 289-291 (1952).

Furthermore, the Bill of Rights Committee, in reaffirming the principles embodied in article I, section 13, was primarily concerned with the size of the jury, not the method of its selection. (See 6 Record of Proceedings, Sixth Illinois Constitutional Convention 26-28, (hereinafter cited as Proceedings).) Consequently there is nothing to indicate that article I, section 13, was ever intended to confer upon litigants a right to directly question prospective jurors.

We have also closely examined article I, section 8, (Ill.Const.1970, art. I, § 8), concerning rights after indictment and have reached a similar conclusion with respect to it. The right to an impartial jury is so basic that the constitutional draftsmen expressly referred to it in article I, section 8. However, the mere fact that this guarantee is spelled out in article I, section 8, does not, in our opinion, resolve the related question of whether the constitution guarantees parties a right to directly examine prospective jurors. Again the record of the convention is silent with respect to this question. See 6 Proceedings 42.

General principles of statutory construction also apply in the construction of constitutional provisions. (Johnson v. State Electoral Bd. (1972), 53 Ill.2d 256, 290 N.E.2d 886.) In construing statutes, federal authority should be consulted where there is a lack of Illinois precedent. (Fitzgerald v. Chicago Title & Trust Co. (1st Dist. 1977), 46 Ill.App.3d 526, 5 Ill.Dec. 94, 361 N.E.2d 94.) Supreme Court Rule 234, while permitting the trial judge to allow direct examination of prospective jurors by counsel " also introduces the alternative, embodied in the comparable federal rule, of requiring the parties to furnish their questions to the trial judge." (Ill.Ann.Stat., ch. 110A, par. 234, Council Commentary, at 104 (Smith-Hurd 1977).) Given the similarities between the Illinois and federal rules and the virtual dearth of Illinois cases on the question of whether there is a constitutional right to direct voir dire examination, we have not hesitated to consult appropriate federal cases.

Our examination of federal law indicates that the courts have consistently rebuffed constitutional challenges to the method of examining the venire utilized by the judge in our case. (See United States v. Duke (4th Cir. 1969), 409 F.2d 669; United States v. Anderson (8th Cir. 1970), 433 F.2d 856; Perry v. Allegheny Airlines, Inc. (2d Cir. 1974), 489 F.2d 1349; United States v. Liddy (1974), 166 U.S.App.D.C. 95, 509 F.2d 428.) By upholding the constitutionality of this method of jury selection in both criminal and civil cases (see Fed.R.Crim.P. 24(a) and Fed.R.Civ.P. 47(a), respectively) these decisions implicitly deny the existence of a constitutional guarantee to directly examine prospective jurors. Thus in United States v. Liddy the court held that the action of the trial judge in molding the method of voir dire examination would not be reversed absent an abuse of discretion which substantially prejudices the defendant.

We therefore hold that there is no constitutional right to direct examination of prospective jurors. In reaching this conclusion we are aware that some commentators have argued that the Illinois cases of Donovan v. The People (1891), 139 Ill. 412, 28 N.E. 964, and People v. Lobb (1959), 17 Ill.2d 287, 161 N.E.2d 325, resolve this issue in favor of the existence of a constitutional right to direct voir dire examination. However, we do not share this view. In Donovan v. The People the court reversed a defendant's grand larceny conviction because the trial judge refused to let her attorney directly question the venire. This decision rested on the rule of Stephens v. People, 38 Mich. 739, but it is noteworthy that Michigan subsequently repudiated the Stephens rule in favor of a method similar to the one adopted by the trial court in our case. More important still with respect to our holding is the court's statement that, "we are aware of the contrary holding by courts of eminent respectability, but under our statute and the uniform practice in our courts we can not sanction the practice adopted in this case." (139 Ill. at 418, 28 N.E. at 966 (Emphasis added.) ) In our view this language indicates that the so-called Donovan rule was based on a statutory rather than constitutional recognition of a right to direct voir dire.

In People v. Lobb (1959), 17 Ill.2d 287, 161 N.E.2d 325, ...