                                 2014 IL App (3d) 120012

                           Opinion filed August 13, 2014
______________________________________________________________________________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                                      THIRD DISTRICT

                                         A.D., 2014

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of the 9th Judicial Circuit
                                       ) Knox County, Illinois
      Plaintiff-Appellee,              )
                                       ) Appeal No. 3-12-0012
                                       ) Circuit No. 08-CF-338
      v.                               )
                                       )
NICHOLAS T. SHELEY,                    ) Honorable
                                       ) James B. Stewart
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

      JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
      Justices Carter and Holdridge concurred in the judgment and opinion.
_____________________________________________________________________________

                                         OPINION

¶1           Defendant Nicholas Sheley was convicted by a jury of first degree murder,

      aggravated vehicular kidnapping, and possession of a stolen motor vehicle, and sentenced

     to terms of imprisonment of natural life, 30 years and 7 years, respectively. He appeals

     his conviction, arguing that he was denied a fair trial by an impartial jury because of

     pretrial publicity. We affirm.

¶2                                        FACTS

¶3           In July 2008, defendant Nicholas Sheley was charged with numerous offenses,

     including first degree murder, aggravated vehicular hijacking, and possession of a stolen
     motor vehicle.    720 ILCS 5/9-1(a)(2), 18-4(a)(1), 16-1(a)(1)(A) (West 2008).        The

     charges arose from a June 2008 incident in which Sheley was alleged to have beaten to

     death Ronald Randall, a Galesburg resident, stolen Randall’s truck, and dumped

     Randall's body. The Galesburg incident was part of a string of offenses allegedly

     committed by Sheley over a several-day span in late June through early July 2008. The

     allegations included that Sheley murdered a man in Whiteside County on June 23 and

     stole his car; stole and burglarized other vehicles in Whiteside, Lee, and Rock Island

     Counties, and stole a company vehicle that he drove to Galesburg, where he committed

     the instant offenses on June 28. Sheley is further alleged to have then returned to

     Whiteside County where he murdered four people, including a two-year-old child, and

     then drove in Randall’s truck to Festus, Missouri, where he killed two more people.

     Sheley was ultimately arrested on July 1, in Granite City, Illinois.

¶4           Extensive publicity followed the alleged crime spree and continued after Sheley’s

     arrest on July 1, and local media covered the court proceedings throughout the pendency

     of the case. The record includes 389 articles and news report transcripts, the majority of

     which mention the crimes Sheley was alleged to have committed outside of Knox

     County. Throughout the pretrial proceedings, the press covered Sheley's disagreements

     with his lawyers, his decision to proceed pro se and his eventual return to representation

     by counsel, and pretrial incidents in the county jail, where Sheley assaulted other

     prisoners and jail staff. Media coverage also included abolishment of the death penalty in

     Illinois and its effects on the Sheley trial, as well as coverage about unrelated crimes

     committed by Sheley's brother. In September 2008, the trial court issued an order

     prohibiting extra-judicial statements after Sheley held a press conference at the county

     jail.

                                             -2-
¶5          In March 2009, Sheley moved for a change of venue, arguing that the jury pool

     had been tainted by the extensive media coverage. Sheley filed a supplemental motion to

     change venue in June 2009, identifying specific instances of prejudicial information in

     the media reports. He argued that the pervasive media coverage exposed the jury pool to

     inaccurate, inflammatory, and sensationalized information, which was sympathetic to the

     victim’s family, and that a demonstrative bias existed. Included with the supplemental

     motion were the results of a public opinion survey commissioned by the defense. The

     survey indicated that as of June 2, 2009, the majority of people who responded to the

     survey and had heard at least some information about the case believed Sheley was

     guilty. Specifically, of the 850 people who responded, 76% recalled the case; 71% of

     those had at least some knowledge of it; 69% had learned about the case from the media

     and community discussion; 68% had an opinion about Sheley’s guilt, with 87% believing

     him to probably be guilty; and 65% indicated they could be impartial as a juror. At the

     end of the poll, participants were provided the opportunity to leave a comment. The

     comments reflected that participants viewed Sheley as guilty, people were following the

     case, and the community was discussing it.

¶6          Sheley filed a second supplemental motion for change of venue in July 2009,

     arguing that the media continued to report facts that would be inadmissible at trial,

     including information about the other murders he was alleged to have committed. In

     response to the change of venue motion, the State argued that the opinion poll also

     revealed that 205 people had no knowledge, which changed the poll results. Per the

     State's calculations, only 41% of potential jurors indicated they could not be impartial.

     On October 28, 2009, defense counsel filed an affidavit in support of the motion to

     change venue, attesting that there continued to be extensive media coverage of the case,

                                           -3-
     including 173 articles and broadcast reports. The affidavit presented the results of a

     second public opinion poll of 3,619 Knox County voters, with 997 people answering the

     survey questions to some degree. The results of the poll indicated that as of October 8,

     2009: 79% had knowledge of the case, with 82% of that number admitting that they

     knew at least some details; 52% were aware of information from the media and 44%

     from the media and discussion in the community; 86% of the responders believed Sheley

     guilty and only 1% believed him innocent; and 63% stated it would be difficult to be

     impartial.    Statements left in the comments section of the survey indicated the

     commenters had an extremely negative opinion about Sheley.

¶7          A hearing took place on Sheley’s motion for a change of venue on November 6,

     2009. The parties stipulated to exhibits of the media coverage of the case and the exhibits

     were entered into evidence. Following arguments of the parties, the trial court denied the

     motion as premature, finding that the only way to determine whether it was possible to

     seat an impartial jury was to attempt voir dire. The trial court distinguished the answers

     given by Knox County residents to the questions in the public opinion poll from their

     responsibilities as jurors, noting that as jurors, they are instructed on their role as well as

     the law.     The trial court also expressed that Knox County had an interest in the

     proceedings and that the cost to transfer the proceedings elsewhere would be prohibitive.

     The trial court noted that a jury was recently seated in one day for Sheley’s trial for

     aggravated battery based on incidents at the county jail, which suggested an impartial

     jury pool was available.

¶8          In March 2010, Sheley filed a second motion in limine to exclude evidence of the

     murders in Whiteside County and Missouri. The State filed an offer of proof, titled

     “Motion in limine to Admit Course of Conduct Evidence,” to establish that the other

                                              -4-
     crimes evidence was relevant to show Sheley’s identity, motive and course of conduct.

     On the State’s motion, the motion in limine was filed under seal to avoid tainting the jury

     pool with knowledge of Sheley’s alleged other crimes. Following a hearing, the trial

     court held that the murder of Russell Reed in Whiteside County was admissible to show

     Sheley’s motive and identification. The trial court found that evidence of the quadruple

     murder in Whiteside County and the double murder in Missouri was too prejudicial,

     although the evidence had some probative value. The trial court determined there was too

     great a risk that if the jury was exposed to the other crimes evidence, it would find Sheley

     guilty based on the enormity of the alleged evidence against him. Considering that the

     jury could “simply conclude that the inquiry is over” with knowledge of the other crimes

     evidence, the trial court held the evidence of the quadruple murder in Whiteside County

     and the Missouri murders was inadmissible.

¶9          In March 2011, Sheley sought to represent himself. He had previously expressed a

     desire to represent himself, but withdrew his request in March 2009. The trial court

     granted Sheley’s motion and he continued pro se until July 14, 2011, when he requested

     that counsel be reappointed, which the trial court allowed. On August 1, 2011, Sheley

     sought to conduct a third public opinion survey to determine the extent to which the jury

     pool had been tainted by the pretrial publicity. In his motion, Sheley argued that the

     media continued to report about all the murders Sheley was alleged to have committed,

     information deemed inadmissible by the trial court. The State responded that there was

     no showing of any pretrial publicity in 2011. The trial court denied the motion as

     untimely, noting that 700 jury summons had already been issued and the trial was

     scheduled to begin in two weeks. The trial court reiterated that the only way to determine

     whether the jury pool was biased was to conduct voir dire.

                                            -5-
¶ 10          Voir dire began on August 28, 2011. In total, 97 jurors were questioned over a

       six-day period; 69 were removed for cause. The final jury, with four alternates, was

       seated on September 7. Both parties exhausted their peremptory challenges.          Each

       venireperson began with a questionnaire and was then individually questioned by the trial

       court and both parties. The voir dire revealed that most of the jury pool had heard

       something about the case at one time or another, with varying degrees of specific

       recollection and factual inaccuracies. Many potential jurors noted that the local media,

       including the local paper, The Register-Mail, covered the case extensively from the

       beginning, and that there was considerable discussion throughout the community about

       the case.

¶ 11          Seven jurors knew about the case but did not know Sheley was accused of other

       murders. Each of the seven stated he or she had not formed an opinion regarding

       Sheley’s guilt and would judge the case on the evidence presented in court. Two of those

       jurors, Deena Allen and Rita Harris, were aware of another murder but knew no details

       and stated they would decide solely on the evidence presented. Sheley moved to excuse

       them for cause, arguing in part that they were aware of inadmissible other crimes

       evidence. The trial court denied the challenges, finding that the jurors stated they would

       be impartial and enter judgment only on the evidence presented. As to Harris, the trial

       court determined that her other crimes information was incomplete and inaccurate.

       Sheley used a peremptory challenge to excuse Allen.

¶ 12          Another juror, Kim Donnelly, had information that the Galesburg murder was part

       of a series of murders in other places. Donnelly indicated she had not read or heard

       anything for approximately three years before trial and had not formed any opinion

       regarding Sheley’s guilt. Sheley also challenged this juror for cause on the grounds of

                                              -6-
       her knowledge of other crimes evidence. The trial court denied the challenge, finding

       that the juror stated she had no opinion on Sheley’s guilt, but would decide on the

       evidence at trial. Juror John Kraus also had knowledge of Sheley’s other crimes and

       acknowledged it was hard not to form an opinion regarding Sheley’s guilt. However,

       Kraus stated he did not have an opinion and would decide the case based on the presented

       evidence. Sheley challenged Kraus for cause, which the trial court denied.

¶ 13          Only two jurors had no knowledge of the case, although one heard discussion of

       the case at a barbeque the weekend in between jury selection and the start of trial. The

       juror, who brought the information to the court’s attention, said she learned Sheley was

       accused of more than one murder. She was not aware of any details of the other crimes

       or how many other murders. After being questioned by the trial court and the parties, the

       juror stated she could disregard what she had heard and would decide on the evidence

       presented.

¶ 14          In all, Sheley used six peremptory challenge to excuse jurors who had knowledge

       of the other murders through pretrial publicity and for whom the trial court denied his

       challenges for cause. One venireperson who had other crimes knowledge was seated on

       the jury after Sheley declined to use a peremptory challenge. After using his sixth

       peremptory challenge, Sheley moved for additional peremptory challenges, arguing that

       the trial court’s denial of his cause challenges for potential jurors who knew of the other

       crimes evidence required him to exhaust his peremptory challenges. While the motion

       was under advisement, Sheley used his final peremptory challenge. Thereafter, the trial

       court denied Sheley’s motion for additional peremptories. Jury selection continued and

       one additional juror who had knowledge of the other murders was selected after the trial

       court denied Sheley’s challenge for cause.

                                              -7-
¶ 15            At the close of jury selection, Sheley moved for a mistrial and for a change of

       venue.     He argued that the media coverage was extensive and unavoidable, and

       irreparably tainted the jury pool. The trial court denied Sheley’s motion for a mistrial,

       finding that the jurors who were selected were impartial in spite of the pretrial publicity.

       It noted that the jury was seated in six days, a good time line in a high profile case. The

       trial court emphasized the potential jurors swore under oath they would set aside any

       opinions based on the pretrial publicity and would uphold the law and decide Sheley’s

       guilt or innocence based on the evidence presented. The trial court also denied Sheley’s

       motion for a change of venue as untimely. It explained that while Sheley’s first motion

       for change of venue was premature, the subsequent motion was too late as the jury has

       been selected and the trial was posed to begin. The trial court noted that the appropriate

       period for the change of venue motion was during the period Sheley proceeded pro se.

¶ 16            The trial took place. The evidence established that Sheley stole a company truck

       from Illinois Oil Products in Rock Island the morning of June 28, 2008. He also took a

       workshirt, shorts and orange company hat from the Illinois Oil Products’ facility. Video

       surveillance footage from a Mobil Mini Mart near Main Street in Galesburg showed

       Sheley in a blue workshirt and orange hat make a gas purchase around 8 p.m. and drive

       off in the Illinois Oil Products truck. Video footage from the HyVee grocery store and

       gas station showed the truck travel west on Main Street around 8 p.m. Randall’s nephew

       saw his uncle in Randall’s 2007 blue Chevy Silverado traveling east on Main Street also

       around 8 p.m. At 8:20, the video showed Randall’s truck proceeding toward the back of

       the HyVee. Randall’s body was later found next to a dumpster behind the HyVee. He

       died of massive blunt force trauma. Randall’s truck reappeared on the tape at 8:25 p.m.

       and pulled into the HyVee gas station, where Sheley, wearing an orange hat and blue

                                               -8-
       workshirt under a flannel shirt, made a purchase. The gas station clerk identified Sheley

       as the man in the video and stated that he was shaking and covered in blood.

¶ 17          Randall’s blood was discovered in the gas station parking lot where Sheley had

       parked Randall’s truck. It was also found on the pavement at the car wash. The Illinois

       Oil Products truck was recovered at the car wash. Beer bottles recovered from the truck

       contained Sheley’s fingerprints and deoxyribonucleic acid (DNA). Randall’s truck was

       recovered on June 30, in St. Louis, Missouri. The passenger seat was soaked in Randall’s

       blood. Items found in the truck contained Sheley’s DNA and his fingerprints were on the

       driver’s door handle and the steering wheel. Four witnesses saw Sheley in Festus,

       Missouri, on June 29; three said he was driving Randall’s truck. Sheley was arrested in

       Granite City on July 1.

¶ 18          After introducing evidence that Sheley was born on July 31, 1979, and Randall

       was born on April 27, 1943, the State rested. The defense rested. The jury deliberated

       and found Sheley guilty on all counts. Sheley filed a motion for a new trial, arguing that

       the trial court erred in denying his challenges for cause for the jurors with knowledge of

       the other crimes. Sheley further argued that the trial court erred in denying his motion for

       a mistrial and for a change of venue after jury selection concluded. The motion was heard

       and denied. The trial court sentenced Sheley to terms of imprisonment of natural life, 30

       years and 7 years. Sheley appealed.

¶ 19                                   ANALYSIS

¶ 20          The issue on appeal is whether Sheley was denied a fair trial by the trial court’s

       rulings regarding pretrial publicity. Sheley argues that he was denied a fair trial for two

       reasons. First, he challenges the trial court’s denial of his motions for a change of venue

       and for a mistrial in which Sheley argued the pretrial publicity had a prejudicial effect on

                                               -9-
       the jury pool. Secondly, Sheley submits that the trial court erroneously denied his

       challenges for cause for jurors who had knowledge of the other murders he was alleged to

       have committed.

¶ 21          A defendant is entitled to a trial by an impartial jury. U.S. Const., amend. VI; Ill.

       Const. 1970, art. I, § 8. An impartial jury is “a jury capable and willing to decide the case

       solely on the evidence before it. [Citations.]” (Internal quotation marks omitted.) People

       v. Kirchner, 194 Ill. 2d 502, 528-29 (2000). There is no requirement that jurors be

       ignorant of the facts and exposure to pretrial publicity alone does not demonstrate

       prejudice. Kirchner, 194 Ill. 2d at 529. However, a juror must be able to set aside his

       opinions and decide the case solely on the evidence presented in court. Kirchner, 194 Ill.

       2d at 529. There is no presumption of prejudice as a result of a juror’s knowledge of

       pretrial publicity. People v. Coleman, 168 Ill. 2d 509, 547 (1995). When a juror states

       he is able to be impartial, he should be believed. Coleman, 168 Ill. 2d at 547-48.

¶ 22          There are some circumstances, however, where inflammatory pretrial publicity is

       so pervasive that the jurors cannot be impartial, regardless of their sincere claims to the

       contrary. Coleman, 168 Ill. 2d at 548. A defendant is entitled to a change of venue due to

       pretrial publicity where a reasonable apprehension exists that he cannot receive a fair and

       impartial trial. People v. Little, 335 Ill. App. 3d 1046, 1052 (2003). The best evidence of

       whether a fair and impartial jury can be chosen is the answers given by potential jurors

       during voir dire. Little, 335 Ill. App. 3d at 1054. A reviewing court must consider the

       entire record, including voir dire, in deciding a defendant’s unfair trial claim. Kirchner,

       194 Ill. 2d at 529. This court reviews a trial court’s denials of a motion for change of

       venue and of challenges for cause during voir dire for an abuse of discretion. People v.

       Sutherland, 155 Ill. 2d 1, 14 (1992) (citing People v. Allen, 413 Ill. 69, 73-74 (1952)); see

                                              - 10 -
       also People v. Bowman, 325 Ill. App. 3d 411, 422 (2001) (citing People v. Ephraim, 323

       Ill. App. 3d 1097, 1104 (2001)).

¶ 23          The trial court denied Sheley’s motions for change of venue on untimeliness

       grounds. It considered the first motion premature, finding that the existence of pretrial

       publicity did not necessitate a change of venue at that time, noting that the trial date was

       remote. In fact, the trial did not begin for nearly two years after the opinion polls were

       taken. The trial court invited the defense to renew its motion at a later date if appropriate

       and anticipated that Sheley would again seek a venue change. Sheley filed a motion to

       change venue and for a mistrial after the jury was selected, which the trial court

       considered too late. The trial court instructed that the appropriate time for the motion was

       during the period from March to July 2011 when Sheley proceeded pro se. The trial

       court reiterated that voir dire would be the best indicator of whether a fair and impartial

       jury could be seated.

¶ 24          We find the trial court properly denied the change of venue motions as untimely.

       The first motion was filed and argued in 2009. The opinion polls were conducted one

       year after Sheley was alleged to have committed the crimes and nearly two years before

       the trial began. At the time the polls were conducted in June and October 2008, the

       crimes were fresh in the community’s consciousness and passions were running high.

       The second motion was filed after voir dire was concluded and the jury was selected.

       The passage of time was reflected in the answers of many potential jurors, whose

       recollections of the crimes, if any, were vague and inaccurate. The record does not

       support the conclusion that the publicity was so widespread and prejudicial that the

       venire remained biased in spite of potential juror’s claims that they were not partial.



                                              - 11 -
¶ 25          Results of voir dire established that a fair and impartial jury was seated in spite of

       the pretrial publicity. The trial court took specific steps to ensure that an unbiased jury

       was selected. On the agreed suggestion of the parties, a jury questionnaire they created

       was disseminated to the jury pool prior to questioning. In addition to the questionnaire,

       the parties were allowed unlimited time to question the potential jurors. The jurors were

       questioned individually, rather than by the trial court’s standard practice of questioning in

       panels. The trial court, State, and defense participated in extensive voir dire, with

       potential jurors being questioned for substantial periods of time. Each potential juror was

       asked numerous questions about their knowledge of the case, including the specifics of

       media exposure.

¶ 26          Voir dire lasted six days. Questioning of the first 64 people resulted in 40

       dismissals for cause and the parties exercised their full 14 peremptory challenges. After

       the 12-person jury was empaneled, voir dire continued, another 33 potential jurors were

       questioned, resulting in a final panel of four alternate jurors. The trial court noted that the

       chosen jurors accepted the seriousness of their duty and each vowed to set aside any

       extraneous information or opinions he or she knew or held about the case. After our

       review of the record, including voir dire, we are satisfied that the trial court seated a fair

       and impartial jury. We find that the trial court did not abuse its discretion in denying

       Sheley’s motion for a mistrial and change of venue.

¶ 27          Sheley also argues that the trial court improperly denied several of his challenges

       for cause, resulting in the exhaustion of his peremptory challenges and the seating of

       several jurors with knowledge of the inadmissible other murders. He maintains that the

       trial court’s cause denials were inconsistent with its ruling on Sheley’s motion in limine

       to exclude evidence of the other murders because the information was too prejudicial.

                                               - 12 -
       Sheley rejects the trial court’s conclusion that the selected jurors could set aside the other

       crimes knowledge, and relies on People v. Taylor, 101 Ill. 2d 377 (1984), to support his

       claim that the pervasive pretrial publicity irreversibly tainted the jury pool.

¶ 28          In Taylor, the defendant argued on appeal that he was denied a fair trial by the

       seating of a biased jury. Taylor, 101 Ill. 2d at 385-86. Information had been widely

       publicized that a co-defendant had been released and charges dropped after he passed a

       polygraph test and that Taylor remained in custody after failing the test. Taylor, 101 Ill.

       2d at 383-84.     The Taylor court found it significant that the publicized information

       concerned polygraph results, which carried with it the possibility that jurors would

       assume the test was reliable to the prejudice of the defendant. Taylor, 101 Ill. 2d at 391-

       92.   The court reasoned that because lie detector tests are inadmissible in Illinois,

       exposure to the information that the codefendant passed and the defendant did not pass

       was sufficient to raise the presumption of partiality. Taylor, 101 Ill. 2d at 393. The

       Taylor court described the polygraph results as “peculiarly persuasive material” and held

       that the trial court erred in denying the defendant’s challenges for cause for the jurors

       who had knowledge of the polygraph tests. Taylor, 101 Ill. 2d at 395-96.

¶ 29          Here, it is undisputed that there was extensive media coverage of Sheley’s case,

       from the initial murders through the trial.       As many of the potential jurors stated,

       information and discussion about the case were widespread in the small, rural Galesburg

       community. The majority of the potential jurors questioned had heard or read something

       about the case at some point. Most had vague recollections and were unable to offer

       substantial facts about the case. Forty out of sixty-four potential jurors were excused for

       cause; seventeen were excused because they were arguably biased from media exposure

       and twenty-three were excused for other reasons. The defense exercised six peremptory

                                               - 13 -
       challenges on potential jurors who knew of the other murders from the pretrial publicity.

       Of the jurors who were seated, three had information about the other murders, but all

       three stated they would decide the case based on the evidence presented. Juror Kraus

       specified that Sheley was “accused” of the other murders and that he did not have the

       facts to form an opinion regarding Sheley’s guilty. Harris, the second juror with other

       crimes knowledge, had incorrect information that would be contradicted in total by the

       facts at trial. The third juror, Donnelly, was aware that there was a series of murders but

       had no opinion regarding Sheley’s guilt.          The trial court and parties extensively

       questioned these jurors and the trial court was assured that they would set aside any bias

       and decide on the evidence presented.

¶ 30           Based on our review of the voir dire, we find the trial court’s conclusion

       supported by the record. The trial court properly distinguished the jurors’ other crimes

       knowledge from the polygraph information found prejudicial in Taylor. As noted above,

       polygraph evidence is never admissible in Illinois courts, while other crimes evidence

       may be admissible. Indeed, the trial court allowed evidence of the first murder that

       Sheley was alleged to have committed in Sterling as part of a course of conduct bringing

       him to Galesburg, where he killed the instant victim, Randall. The other crimes evidence

       of which the three jurors were aware did not create a direct inference of Sheley’s guilt,

       unlike the polygraph results at issue in Taylor.         Moreover, after distinguishing the

       peculiar nature of the polygraph evidence, the Taylor court reiterated that the general test

       is whether the defendant in fact received a fair trial. Taylor, 101 Ill. 2d at 396. Voir dire is

       a “significant tool” in determining juror whether a potential juror can set aside any biases

       and make a determination on the evidence presented. Taylor, 101 Ill. 2d at 398. Here,

       the record, including voir dire, established that an unbiased jury was seated and Sheley

                                                - 14 -
       received a fair trial. Accordingly, we find the trial court properly denied Sheley’s motion

       for a new trial.

¶ 31           For the foregoing reasons, the judgment of the circuit court of Knox County is

       affirmed.

¶ 32           Affirmed




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