People v. Zehr

JUSTICE HEIPLE, dissenting:

I do not agree with the majority’s conclusion that the trial judge erred in admitting the victim’s videotaped testimony, nor do I believe that he abused his discretion by refusing the defendant’s proposed voir dire questions.

The victim in this case was Hazel Fox, a 68-year-old woman with a history of hypertension and arteriosclerosis. The trial court ordered that an evidence deposition of her testimony be taken since the condition of her health raised the substantial probability that her testimony would be unavailable at trial. (Supreme Court Rule 414(a) (87 Ill. 2d R. 414(a)).) This rule also provides that an evidence deposition in a criminal trial shall be taken in accord with Supreme Court Rule 206 (87 Ill. 2d R. 206) which provides that a deposition may be videotaped by order of the court for good cause shown. The State argued that it was important for the jury to observe Mrs. Fox’ demeanor. The trial judge agreed and ordered that the deposition be videotaped. At trial, a medical expert testified that Mrs. Fox’ condition had not improved and that she would not be able to testify in person. Hence, the trial court admitted the videotaped evidence deposition over the objection of defense counsel.

In reversing the trial court, the majority does not challenge the appropriateness of an evidence deposition in this case. Rather, they feel that the State failed to demonstrate good cause for using videotaped testimony. Whether good cause was shown was a matter left to the discretion of the trial judge and he did not abuse that discretion in this case. While I would agree with the majority that the need for the jury to observe a witness’ demeanor would not be good cause in every case, I do believe that it was sufficient under the circumstances of this case.

Good cause must certainly encompass the demeanor of the complaining witness when that witness is the only individual who can identify the defendant as the perpetrator of the crime. Clearly the trial judge did not err in finding that the demeanor of this particular witness was important to the jury in determining the defendant’s guilt or innocence. Even the defense counsel would have preferred that Mrs. Fox testify in person and specifically referred to her demeanor during closing arguments. In view of the importance of her testimony, a videotaped evidence deposition was the next best thing to Mrs. Fox’ presence at trial. It enabled the jury to better assess the credibility of this key witness than the reading of a deposition would have. However, the defense counsel argued that showing the jury a videotape tended to overemphasize Mrs. Fox’ testimony. The majority agrees with the defense, adding that a videotape may not be an accurate reflection of the witness’ true demeanor. It is my position that these alleged problems are not inherent flaws in all videotaped testimony but are factors which the trial court should consider on a case-by-case basis in deciding whether or not to use that method of recording. Annot., 66 A.L.R.3d 637 (1975).

The use of videotaped evidence depositions should be encouraged where good cause is shown. The majority opinion places an undue restriction on the trial judge’s discretion in determining good cause, therefore, I dissent.

I also do not think that the trial judge abused his discretion in refusing to give the following supplemental voir dire questions tendered by defense counsel:

“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 (73 Ill. 2d R. 234) clearly forbids any examination of jurors, directly or indirectly, concerning matters of law or instructions:

“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.”

Although the majority may correctly perceive the proposed questions as probing for bias and prejudice, the questions also have the indirect effect of examining the jurors concerning matters of law and instructions.

The agreed statement of the parties concerning voir dire examination indicates that the jurors were asked if they would follow the instructions of law given by the court even though they might personally disagree with the instructions. The questions offered by the defense were then incorporated into the pattern jury instructions given by the court. This procedure adequately encompassed the proposed questions while remaining within the bounds of Rule 234. To allow the defense to submit questions on voir dire which amount to jury instructions is to indoctrinate and pre-educate the jurors concerning matters of law and that is forbidden. People v. Phillips (1981), 99 Ill. App. 3d 362 .

I also note that the appellant does not claim that the jury selected was biased or unfair: “Where a voir dire examination — whether conducted by the court or by counsel — results in a qualified and impartial jury, no prejudicial error occurs in its selection.” (People v. Carruthers (1974), 18 Ill. App. 3d 255, 261 .) For these reasons, I would affirm the judgment of the trial court.