People v. Cunningham, Gen. No. 51723

• Decision Date: 07 April 1970
• Docket Number: Gen. No. 51723
• Citation: 260 N.E.2d 10,123 Ill.App.2d 190
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth CUNNINGHAM (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 10

260 N.E.2d 10

123 Ill.App.2d 190

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth CUNNINGHAM (Impleaded), Defendant-Appellant.

Gen. No. 51723.

Appellate Court of Illinois, First District, Second Division.

April 7, 1970.

James L. Coghlan, Coghlan & Joyce, Chicago, for appellant.

Edward V. Hanrahan, State's Atty., County of Cook, Chicago, Elmer C. Kissane, Laurence J. Bolon, Asst. State's Attys., of counsel, for appellee.

LYONS, Justice.

In a two-count indictment, the defendant, Kenneth Cunningham, age eighteen, and three other youths, William McAvoy, Phillip Spagnola and John Ligue were jointly charged with murder in violation of Ill.Rev.Stat. (1963), ch. 38, § 9--1(a)(1) or (a)(2). McAvoy's motion for a severance was granted and he received a separate trial. He did not testify in the instant case and this record is silent as to the ultimate disposition of his case. The three other co-indictees, Cunningham, Spagnola and Lugue were jointly tried by a jury, were convicted of murder and judgments were entered. Spagnola and Ligue have appealed from these adverse judgments along with others against them which judgments we today affirmed. See People v. Spagnola (Impleaded) and Ligue (Impleaded), Ill.App., 260 N.E.2d 20. After judgment was entered against Cunningham for murder and his written post-trial motion for a new trial was denied, he was sentenced to 20--40 years in the State Penitentiary. In this appeal, he does not question the sufficiency of the evidence but maintains that he did not receive a fair trial due to five trial errors.

Specifically, he contends that: (1) he was denied the right to be tried by a fair and impartial jury due to prejudicial pretrial newspaper publicity informing the venire that twelve of their fellow jurors had been excused from jury service by a judge, not the jurist who presided at the instant case however, because they had returned a not guilty verdict with which the judge publicly disagreed; (2) the trial court erred in denying the defendant's motion for a mistrial when the widow of the deceased ran screaming from the courtroom during the testimony of the State's life and death witness and also when the jury commingled with relatives of the deceased and other veniremen; (3) the prosecution deliberately prejudiced the defendant by informing the jury of a prior statement made by a State's witness and by commenting on this statement to the jury in closing argument; (4) the trial court's refusal to give the defendant's tendered voluntary and involuntary manslaughter instructions was reversible error; and (5) the court erred in submitting a flight instruction to the jury which prejudiced the defendant since the prosecution presented no evidence that he attempted to flee from the scene of the crime.

On January 24, 1966, prior to the commencement of the Voir dire examination in the instant case, the attorney for Cunningham presented to the court a written 'Challenge to the Array of Jurors and Motion for (30) Day Continuance' which was signed by the defendant Cunningham, supported by his affidavit, and had attached to it as exhibits, three newspaper articles which had appeared in the Chicago press. The Challenge alleged that on the preceding Monday, January 17, 1966, a judge sitting in the Cook County Criminal Court Building (not the trial judge sitting in the instant case however) had publicly criticized, discharged and dismissed from future jury service twelve jurors who had returned a not guilty verdict. The Challenge went on to state that these twelve jurors were part of the same venire from which the defendant's jury would be selected; that the jurors were discharged because the judge thought a conviction should have been returned and not an acquittal; that these jurors returned to the Criminal Court Building the next morning but were sent home; that these facts had been given publicity by the Chicago newspapers on Wednesday and Thursday, January 18 and 19, 1966; and that as a result of the foregoing factors, the venire was not lawfully constituted and a fair and impartial jury could not be selected from this venire. The Challenge concluded with a prayer that the trial be continued for thirty days so that the defendants could select a jury from a new venire. After hearing argument the court denied the Challenge to the Array and Motion for a Continuance but informed the three defense counsel that each of them would be permitted the widest of latitude in the ensuing Voir dire examination so that each could determine to his satisfaction whether the veniremen knew of this incident and the extent, if any, to which they were influenced by it. The trial court later refused to excuse such prospective jurors for cause, requiring the defendants to use their peremptory challenges. The record reveals that the defendants, Cunningham, Spagnola and Ligue, and the State were each allowed a total of sixty (60) peremptory challenges.

We doubt if this issue was properly brought to the trial court's attention by virtue of the Challenge to the Array. We recognize that defendant's counsel alleged in his motion that the venire was not lawfully constituted due to the dismissal of twelve jurors from future jury service, but such dismissal occurred subsequent to the selection of the array. A challenge to the array goes to the form and manner of selecting the venire and relates to the legality of selecting, summoning, or impaneling the venire or array. Bruen v. People, 206 Ill. 417, 423--424, 69 N.E. 24 (1903); Borrelli v. People, 164 Ill. 549, 558--560, 45 N.E. 1024 (1897). It will only be allowed upon some ground affecting the validity of the whole array growing out of the proceedings in selecting and summoning the jurors composing the array. United States v. Gordon, 253 F.2d 177, 184--185 (C.A.7th Cir. 1958). In the instant case, the defendant's Challenge raised no question as to the drawing, selecting, or inpaneling of the array. However, because the State did not object to the Challenge but answered it on its merits, we shall do the same.

In our opinion, the trial court handled this delicate matter in a proper manner. The remedy was not to impose a thirty day continuance but rather was to expand the Voir dire examination so as to determine the effect of the pretrial publicity on the prospective jurors. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.E.2d 751 (1961); People v. Williams, 40 Ill.2d 522, 531--532, 240 N.E.2d 645 (1968). Furthermore, the examination of prospective jurors is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among the array. People v. Kurtz, 37 Ill.2d 103, 108, 224 N.E.2d 817 (1967). We do not think that the incident alluded to in the Challenge which involved twelve other jurors and another trial court judge in an unrelated case must lead to the presumption, as a matter of law, that all other veniremen in the array no longer could be fair and impartial to the defendant.

The Voir dire examination is included in the record before us. The examination of prospective jurors took approximately three days and the trial of the case on the ultimate issues took a like period of time. During the Voir dire examination, the trial court informed the prospective jurors on four separate occasions that it had the practice, which it intended to continue, of never commenting on the verdict of the jury. Approximately ninety prospective jurors were examined and the majority of those who were asked the question stated that they had read, in the jury assembly room, the newspaper articles earlier alluded to, but most of them said they were not influenced by it and would continue to follow the dictates of their own conscience. The defendants used their peremptory challenges on those veniremen having a contrary attitude. When twelve jurors were acceptable to both sides and were sworn, the court had excused nineteen prospective jurors for cause and the State had used thirteen of its peremptory challenges where as the defense had used forty-one. Although the defendants contend that the court erred in refusing their challenge for cause as to all jurors who had read the newspaper articles, they were not prejudiced by this ruling as they had nineteen peremptory challenges remaining at the time the jury was sworn.

We have carefully examined the seven hundred twenty-two page transcript of the Voir dire examination presented to us and note that all the prospective jurors who ultimately made up the final panel of twelve and who were asked the question stated that what another judge did in an unrelated case and the newspaper publicity given it would not affect their deliberations in the instant case and that it would not be necessary to convict these defendants in order to avoid criticism from the judge presiding at this trial. The judge presiding at the instant case informed the prospective jurors on four separate occasions that he intended to continue his practice of never commenting on the verdict returned by the jury. Some of the twelve jurors acceptable to both sides, including the foreman of the jury, stated that they thought the other judge was incorrect in criticizing the other jury for doing their duty.

It is also to be noted that when the jury was sworn, the defendants had nineteen unused peremptory challenges. This too indicates that the attorneys for the defendants were of the opinion that these twelve jurors represented a fair and impartial trier of the facts. People v. Sleezer, 9 Ill.2d 57, 60--61, 136 N.E.2d 808 (1956); People v. William, 40 Ill.2d 522, 531--532, 240 N.E.2d 645 (1968); People v. Speck, 41 Ill.2d 177, 184, 242 N.E.2d 208 (1968). Counsel for the defendant states that he did not use the remaining peremptory challenges because he...