People v. Tobe
| Decision Date | 24 November 1971 |
| Docket Number | Nos. 43140,43902,s. 43140 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Melvin TOBE, Appellant. |
| Court | Illinois Supreme Court |
James R. Bronner, Chicago, appointed by the court, for appellant.
William J. Scott, Atty. Gen., James B. Zagel, Asst. Atty. Gen., and Edward V. Hanrahan, State's Atty., Chicago (Robert A. Novelle and Themis N. Karnezis, Asst. State's Attys., of counsel), for the People.
The defendant, Melvin Tobe, who was indicted for the murder of Robert Lee Jackson, was found guilty of voluntary manslaughter on February 27, 1970, in the circuit court of Cook County. He was sentenced to not less than 9 nor more than 18 years in the State penitentiary. On this appeal he contends; (1) the trial court failed to conduct a meaningful hearing to determine whether the bailiffs prejudicially influenced the jurors so as to violate the defendant's right to an impartial jury; (2) bailiffs did in fact prejudicially influence the jury and thereby violated his right to an impartial jury; (3) the court erred in permitting the State to amend a bill of particulars after eight jurors had been accepted, thereby precluding the defense from exercising peremptory challenges as to the jury members already accepted; (4) the State improperly referred to a suggested extra-indictment offense, thereby prejudicing the jury; (5) the sentence was excessive. While the appeal from the conviction was pending, the defendant filed a petition for a post-conviction hearing, which was dismissed without a hearing. The defendant also appealed from that dismissal, saying that the court erred in holding that the petition could not be entertained while an appeal from the conviction was pending. We have consolidated the two appeals. The post-conviction petition alleged that the defendant had been denied an impartial jury through (1) the bailiffs' conduct; (2) the State's references to an extra-indictment offense; (3) the State's improper and unsupported suggestion that the defendant had lied in his testimony.
The State's evidence, which included the testimony of two eyewitnesses, was that early in the morning of October 25, 1969, the defendant parked his auto near 2215 West Madison Street in Chicago, a short distance behind an auto occupied by the victim, Robert Lee Jackson. The defendant got out of his car, walked to the right rear door of the auto in which Jackson was seated and motioned to him to come out. When Jackson stepped from the auto, the defendant drew a gun and shot at Jackson but missed him. He fired again at Jackson, who had fallen to the sidewalk, returned to his auto and drove away. Jackson was pronounced dead at Cook County Hospital from a bullet wound in the back of the neck.
The defendant, who was the only occurrence witness for the defense, testified that during the early morning hours of October 25, 1969, he and his wife were driving his mother-in-law and a friend home when he observed Jackson in an auto. He had heard that Jackson had made a statement that the defendant had shot one Otis Walker and he intended to question him about it. Jackson stepped from the auto when the defendant tapped on the window and he noticed that Jackson was carrying something in his hand. Jackson asked if the defendant came to shoot him, too, and then struck the defendant in the head with a gun. The weapon was discharged, and the two men scuffled. The defendant's next recollection was that Jackson was lying on the sidewalk and he, the defendant, had the weapon in his hand. He returned to his car, he testified, drove his mother-in-law and her friend home, and then proceeded to St. Louis. When driving to St. Louis he threw the weapon from the car. On October 27th the defendant phoned the Chicago Police Department to say he was returning to Chicago. He did return to Chicago on October 29 and turned himself over to the authorities on October 30.
The defendant's trial was begun on February 19, 1970, and concluded on February 27. Five days were spent in the presentation of evidence. Including time for dinner, the jurors deliberated slightly less than seven hours before returning their verdict. The jurors were polled and affirmed the verdict.
The defendant filed post-trial motions, including a motion for a new trial and a motion styled 'for a hearing on inquiries made by the jury in the course of their deliberations.' This latter motion was supported by an affidavit of one of the defendant's attorneys to the effect that he had learned from jurors that three inquiries had been made by the jury during its deliberation and that defense counsel had been unaware of this. In considering this motion the court called Thomas Goe, who had been the chief bailiff at the trial. Goe testified that he recalled one communication from the jury, stating they could not reach a verdict. He had informed the trial judge and had been instructed to tell the jury that it should continue to deliberate. The judge said in the course of this proceeding that this was the only communication of which he was aware. Treating the motion for a hearing as part of the motion for a new trial, the court denied the motion for a new trial. The defendant later submitted a motion to reconsider the motion for a hearing 'on the inquiries' and presented affidavits taken from three bailiffs and seven of the jurors. It appears from the affidavits of the bailiffs that there had been two or three inquiries from the jury, which apparently concerned what would occur if the jury could not reach a verdict. The bailiffs' responses had been that the jury should continue to deliberate until a unanimous decision was reached. According to the affidavits of the jurors there had been three or four instances in which they had asked these questions of the bailiffs and the jurors were told they should continue deliberating until they reached a verdict. One juror said that because she had been told the jury had to reach a verdict she signed a verdict in which she didn't believe. Another juror said that the statement that the jury had to reach a verdict didn't affect his decision, but the affiant said he knew it influenced others to reach the verdict. The court granted the motion to reconsider the motion for a hearing on the inquiries. It conducted the hearing on the question and considered it as part of the defendant's motion for a new trial. The motion for a new trial was again denied.
We shall consider in combination the first two arguments of the defendant. There is an overlapping in the presentation, and, also, common subsidiary points appear in the course of both of the arguments.
We consider the charge that the trial court failed to give the defendant a 'meaningful' hearing to determine whether the bailiffs prejudiced the defendant's right to a fair and impartial jury is not well founded. If the hearing was less than meaningful in any form, it would appear from the record that it was hardly attributable to the conduct of the trial court. There is no showing that the defendant was denied the opportunity to offer witnesses or other evidence for the court's consideration or that in any way he was restricted in arguing the motion.
The trial court correctly was of the view that two established precepts were to be considered in passing on the motion for a new trial. One was described in People v. Mills, 40 Ill.2d 4, 14, 237 N.E.2d 697, 703, where we said: The other rule invoked by the court was the familiar one that jurors will not be permitted to impeach their verdict. Applicable here was this court's expression in People v. Pulaski, 15 Ill.2d 291, 300, 155 N.E.2d 29, 34: 'It is the general rule that courts will not receive the affidavits or testimony of jurors who rendered a verdict, for the purpose of impeaching such verdict.' Referring to the latter rule the trial court correctly refused to consider those portions of the two jurors' affidavits which were impeaching. Parenthetically, the defendant's brief says that the trial court, when denying the motion for the new trial for the first time, indicated that it had not considered all parts of all of the affidavits presented. The record, however, shows that at an earlier time counsel for the defendant stated that the trial court could disregard the impeaching portions of the affidavits.
The trial court did not err in not setting aside the verdict because the defendant was not present at the time of the communication, as ...
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People v. Hobley
...communications only if the defendant was prejudiced as a result of the improper communication or outside influence. People v. Tobe, 49 Ill.2d 538, 542, 276 N.E.2d 294 (1971); People v. Mills, 40 Ill.2d 4, 14, 237 N.E.2d 697 (1968). In order to demonstrate such prejudice, jurors may testify ......
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...471, 643 N.E.2d 762 (1994); accord People v. Thompkins, 121 Ill.2d 401, 428, 117 Ill.Dec. 927, 521 N.E.2d 38 (1988); People v. Tobe, 49 Ill.2d 538, 547, 276 N.E.2d 294 (1971); People v. York, 29 Ill.2d 68, 71, 193 N.E.2d 773 (1963); see also 2A Ill. L. & Prac. Appeal & Error § 402, at 93 (2......
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... ... This court has previously considered the validity of a conviction where there has been a questionable communication by the trial judge to the jury. In People v. Tobe (1971), 49 Ill.2d 538, 542-44, 276 N.E.2d 294, the court held that if there was a communication to the jury outside the presence of the defendant, and it is apparent that no prejudice resulted, the jury's verdict will not be set aside. See also People v. Mills (1968), 40 Ill.2d 4, 14, 237 N.E.2d ... ...
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... ... (People v. Callahan (1974), 16 Ill.App.3d 1006, 307 N.E.2d 188.) And even if they did and were not coercive or prejudicial, the verdict will not be set aside. People v. Tobe (1971), 49 Ill.2d 538, 276 N.E.2d 294 ... Defendants also argue that two jurors who were excused during the trial and replaced by alternate jurors should not have been excused and that several other jurors should have been excused or examined as to possible prejudice which ... ...