People v. Zehr

Decision Date23 March 1984
Docket NumberNo. 57683,57683
Citation83 Ill.Dec. 128,103 Ill.2d 472,469 N.E.2d 1062
Parties, 83 Ill.Dec. 128 The PEOPLE of the State of Illinois, Appellant, v. Kenneth ZEHR, Appellee.
CourtIllinois Supreme Court

Robert J. Agostinelli, Deputy State Appellate Defender, Peter A. Carusona, Asst. State Appellate Defender, Ottawa, for appellee; James Leo Keely, Ottawa, of counsel.

Neil F. Hartigan, Atty. Gen., Michael B. Weinstein, David E. Bindi, Asst. Attys. Gen., Chicago, John X. Breslin, Deputy Director, Terry A. Mertel, Staff Atty., State's Attys. Appellate Service Com'n, Ottawa, for appellant; Gary L. Peterlin, State's Atty., Ottawa, of counsel.

Modified on Denial of Rehearing


In an indictment returned in the circuit court of La Salle County, defendant, Kenneth Zehr, was charged with home invasion, burglary, and aggravated battery (Ill.Rev.Stat.1979, ch. 38, pars. 12-11(a)(2), 19-1, 12-4(b)(10)) and in a jury trial was convicted of all three offenses. Defendant was sentenced to concurrent terms of imprisonment of 22 years for the home invasion, six years for the burglary, and 3 1/2 years for the aggravated battery. The appellate court reversed and remanded for a new trial (110 Ill.App.3d 458, 66 Ill.Dec. 155, 442 N.E.2d 581), and we allowed the People's petition for leave to appeal (87 Ill.2d R. 315).

In reversing the judgment, the appellate court held that the circuit court had abused its discretion in refusing to include in its voir dire examination of the jury three questions submitted by defendant, and that it had erred in permitting the use of the videotaped deposition of Mrs. Hazel Fox, the complaining witness.

Mrs. Fox testified that on the evening of October 27, 1980, defendant and another person came to her house and attempted to talk to her about an old car that she had for sale. She refused their request that she come outside and show them the car, and they left. Later, at approximately 1 o'clock on the morning of the 28th, she went to the basement of her house to check the furnace. As she approached the furnace, she heard a rustling noise behind a shower curtain in the downstairs bathroom. Defendant and the man who was with him earlier then showed themselves in the doorway of the bathroom, and after they paused for a second, defendant knocked off her glasses, effectively blinding her. She was restrained with clothesline wire, knocked to the floor, and gagged. She stated that defendant, in an attempt to suffocate her, pushed her face and head into some bedding. Defendant and his companion left her in the basement and went upstairs. They returned to the basement, and defendant kicked and pushed her again. Defendant left her, went upstairs, and then returned to push and kick her three more times. After the last pushing-and-kicking incident, she heard what she believed to be defendant's truck being driven away. She removed the restraints from her wrists and ankles and, upon doing so, crawled up to her bedroom, found a spare pair of glasses, and telephoned for help.

The People adduced testimony that defendant was in possession of certain items that Mrs. Fox testified were missing from her house, and that, in a police lineup, she identified defendant as the man who had attacked her. Defendant introduced testimony that he was in possession of the items prior to the date of the alleged burglary and that his truck, which Mrs. Fox said she had heard being driven from her home, was in the shop at that time. Defendant did not testify.

The supplemental questions tendered by defendant were:

"1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?

2. If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?

3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State?"

Supreme Court Rule 234 provides:

"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." 87 Ill.2d R. 234.

The People contend that because the questions pertained to matters of law or instructions, the circuit court correctly refused to ask them. They argue that the given instructions adequately advised the jurors concerning the burden of proof and the presumption of innocence (Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.03 (2d ed. 1981)) and that they should not consider the fact that the defendant did not testify (IPI Criminal No. 2.04). They point out, too, that the jurors were asked whether they would follow the law as given them by the court even though they might personally disagree with it and whether any reason, moral, religious or otherwise, would prevent their being fair and impartial. Defendant argues that assuming that the questions pertain indirectly to questions of law "each of them goes to the heart of a particular bias or prejudice."

We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect. It is also vital to the selection of a fair and impartial jury that a juror who finds that the State has failed to sustain its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a verdict of not guilty. We note parenthetically that it is equally important that a juror who finds that the State has sustained its burden of proof have no prejudice against returning a verdict of guilty. We agree with the appellate court that "[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury" (110 Ill.App.3d 458, 461, 66 Ill.Dec. 155, 442 N.E.2d 581), and although they need not have been asked in precisely the form submitted, the subject matter of the questions should have been covered in the course of interrogation on voir dire. The refusal to ask the questions resulted in prejudicial error which required reversal of the judgment.

Because the cause is remanded for a new trial we deem it essential to consider the question of the use of the videotaped deposition. Approximately two weeks before trial, the People filed a motion for the taking of the videotaped evidence deposition of Hazel Fox, the victim and only eyewitness to the crimes. The People stated that Mrs. Fox was a cardiac patient receiving medical care, and argued that, because of her deteriorating health and the possibility that she might be unavailable to testify at trial, a deposition was necessary to preserve her testimony. The People asserted that a videotaped deposition was necessary to show the demeanor of the witness while testifying. Defendant contended that a deposition was unnecessary and that the videotape, if it were shown at the trial, would call undue attention to Mrs. Fox' testimony.

The circuit court allowed the People's motion and ordered the deposition taken by videotape and transcribed by a court reporter. Both parties participated in the deposition. The deposition was taken on August 1, 1981, in the courtroom with the trial judge present. On August 11, 1981, the morning of the trial, the People moved to admit the videotaped evidence deposition in lieu of Mrs. Fox' live testimony. In support of the motion, the victim's treating physician, Dr. Anton Giger, testified that he had known Mrs. Fox since June 1981, when he had taken over the practice of Dr. Maierhofer, who had been her physician for many years. Dr. Giger had seen Mrs. Fox on the morning of August 10, apparently for the first time since June 8. On August 10 she was complaining of chest discomfort and shortness of breath. At that time he considered her to be "in moderate distress." He was of the opinion that there had been some deterioration in her physical condition since June 8. He had also seen her on the morning of August 11. There was no prospect of improvement in her condition, and the best that could be expected was that there would be no further deterioration. In his opinion, Mrs. Fox would not at any time in the future be in sufficiently good condition physically to testify.

On cross-examination, Dr. Giger expressed surprise that Mrs. Fox had been able to appear for deposition on August 1. On further questioning, he agreed...

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2 books & journal articles
  • Jury Selection
    • United States
    • James Publishing Practical Law Books Illinois Objections
    • 1 Mayo 2013
    ...of a prospective juror shall be made into the defendant’s failure to testify when the defendant objects. SCR (431 (b)); People v. Zehr , 103 Ill 2d 472, 469 NE2d 1062 (1984); People v. Glasper , 234 Ill 2d 173, 917 NE2d 401 (2009) (under pre-2007 version of Supreme Court Rule 431(b), harmle......
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