delivered the opinion of the court:
Defendant Charles Baisten, a black, appeals his jury conviction for murder on two grounds, alleging (1) that he was deprived of a fair and impartial trial when the circuit judge erroneously found under the standards set forth in Batson v. Kentucky (1986),
THE FACTS
A jury consisting of nine white and three black persons convicted defendant of murder, resulting in his being sentenced to a term of 40 years in the custody of the Illinois Department of Corrections. A summary of the voir dire follows a review of the evidence.
TRIAL TESTIMONY
Alan Anderson (Anderson), 24, testified that at about 4 or 4:30 in the morning of August 2, 1986, he, the victim Dаrren Turner (Turner) and four other friends drove to the G & B Barbecue at 103rd and LaSalle Streets in Chicago to pick up a carry-out meal for Anderson’s wife. They parked their car on the north side of 103rd Street, about 10 feet west of the barbecue stand. Anderson and Keith Beverly (Beverly) got out of the car and walked inside. Turner remained in the car with Clarence Cunningham (Cunningham), Darnell Smith (Smith) and Larry Jackson (Jackson). As he walked out of the stand with his food, Anderson noticed a crowd of approximately 30 people in the street, near the rear of his automobile, about 10 to 15 feet away from him. Lighting conditions in the street were good. Anderson then saw defendant, who was wearing a pair of blue jeans and no shirt, standing about 15 feet away from him against a lamp post, holding a gun in his right hand tightly against the back of his right thigh. After seеing the gun, Anderson touched Smith and Turner, who was standing about 10 feet away, closer to the south side of the street, and said “let’s go.” Then, having turned his back to Turner, Anderson heard a gunshot, “jumped” to the ground, and heard a second gunshot. He said the sounds came from the same direction in which only seconds earlier he had seen defendant standing with a gun.
Anderson saw Turner lying on the ground, wounded in the back of the head. He felt Turner’s pulse, then ran to the barbecue stand to call for an ambulance and police, who arrived before Anderson came back out. About 10 minutes after the shooting, the police interviewed him on the scene. He did not see defendant again until defendant was arrested and placed in a paddy wagon. Soon after the interview, Anderson was taken to police area headquarters to view a lineup, where he identified defendant, now wearing a tank top, as the man he had seen holding a gun.
Cunningham, 24, essentially corroborated Anderson’s testimony about the circumstances of the six friends arriving at the barbecue stand. He stated further that he remained in the car with Turner and Smith, while the others went inside. While they were waiting in the car, a woman named Lesa O’Neal (O’Neal), who according to Cunningham looked like a prostitute, walked past the car, eastbound on 103rd Street. Turner made some comments to her, then got out of the car and spoke to her again as they were walking. When O’Neal and Turner got to the corner, she walked across the street toward three men, spoke briefly to them, then walked back with them to where Turner was standing and slapped him across the face. In the meantime, Cunningham and Smith had gotten out of the car, and a fight broke out among O’Neal, Cunningham, Smith, Turner and the three other men. The fight then moved out into the street, where the number of people had grown to about 30 to 35. Cunningham kept hollering “let’s go” to Smith and Turner, beckoning them to leave.
Cunningham then noticed defendant leaning against a stop sign pole on the corner, “looking kind of funny.” The area was brightly illuminated by streetlights. Defendant was wearing gym shoes and a pair of jeans, but no shirt. His right arm was extended across his midsection, and with his left hand he held a black felt-like hat over his right hand, as if hiding something. Cunningham thought it might be a gun. At that time a man ran up to defendant and said, “Give me the gun, give me the gun.” Defendant did not give him anything and a few seconds later the man left.
Cunningham turned and began running toward the barbecue stand to find Anderson. After tаking about five steps he heard two gunshots. Turning back to the middle of 103rd Street where he heard the shots, he noticed Turner lying on the ground, wounded. Cunningham then ran to the barbecue stand to call an ambulance, which arrived with the police in about three or four minutes. While being interviewed by the police on the scene, Cunningham noticed defendant leaning against the same pole on the corner of 103rd and Perry Streets, about 10 feet away. He no longer held the hat and was wearing a dark green tank top. After Cunningham pointed him out, the police arrested him, finding the hat tucked under his belt. Cunningham later identified defendant at a lineup.
Dr. Tae An, a Cook County medical examiner, performed an autopsy on the victim and determined that he died from a gunshot wound to the head.
Chicago police officеr Stan Salabura came to the scene of the shooting in response to a radio call and was told by Officer Neal that a man and a woman who were involved in the incident were walking away eastbound on 103rd Street. The woman, O’Neal, broke and tried running away but was later apprehended in a gangway. She told Officer Salabura that defendant was the one who fired the gun which killed Turner. Officer Salabura also interviewed Cunningham, whose identification of defendant on the scene led to defendant’s arrest.
Chicago police detective William Storck testified that he also arrived at the scene in response to a radio call. He saw O’Neal sitting in a police car with Officer Salabura. She beckoned him to come over. Officer Storck then took her into his unmarked police car and had a conversation with her. After talking to her, he sent two flash messages over his radio about the offender, then five minutes later noticed defendant in a police wagon on the scene.
Chicago police officer Reynard James Ricks, assigned to the crime laboratory, administered a gunshot residue test on defendant at area headquarters approximately three hours after the shooting. Defendant did not tell him whether he was right or left handed, but stated that he had last washed his hands sometime the day before.
Chicago police officer Raymond Lenz, also assigned to the crime laboratory, was qualified as an expert in the field of forensic micro-analysis. He performed several tests on the samples taken from defendant’s hands and determined that the backs and palms of his hands had high levels of lead, barium and antimony. In Officer Lenz’s opinion, the very high level of these elements indicated that defendant had either fired a weapon or handled a recently fired weapon before the test. It was also his opinion that according to the test results it was more likely that defendant had fired the weapon himself rather than having handled one after someone else had fired it. On cross-examination, Officer Lenz acknowledged that similarly high levels of the elements may be found on the hands of a person who either works in a foundry machine shop or has handled gasoline.
Chicago police officer James Lotito testified for the defense. On the night of the shooting, he conducted a lineup viewed by Anderson, Smith and Cunningham. At the lineup Cunningham told him that someone walked up to defendant shortly before the shots were fired and said “give it to me, give it to me.”
Iva Brown testified that on the night of the shooting she was with defendant inside the G & B Barbecue when they heard shots being fired across the street. On that night, according to her, defendant was wearing striped pants, a white T-shirt and a baseball cap.
John Carpenter, 69, who lived on the corner of 103rd and Perry Streets, testified that he was sitting on his front porch in the early morning hours of August 2, 1986, when he heard two shots fired. He walked down to the corner and saw Turner’s body lying on the pavement. While Carpenter was talking to a neighbor, he noticed defendant standing nearby for a while, but did not see from which direction he had come. Shortly thereafter he saw the police place defendant under arrest.
THE VOIR DIRE AND BATSON HEARING
The record on аppeal indicates that before trial, the trial judge individually questioned approximately 40 prospective jurors. Of the 12 jurors who were finally impanelled, three were black; the two alternates were also black. Nine prospective jurors were excused for cause. The State and defendant each exercised seven peremptory challenges. Six of these seven challenges were used by the State to excuse blacks; Jerry Brown, Marie Douyon, Maxine Johnson, Regina Little, Anita Harrell and Walter Thornton. The record on appeal does not indicate either the racial composition of the venire, the race of the nine jurors excused for cause, the identity of the three black jurors or the order in which the parties exercised their peremptory challenges and challenges for cause.
After the circuit judge summarized the challenges exercised by both sides, the following colloquy took place between the judge and counsel for the defense:
“THE COURT: I am going to put it out now, I have heard no motion for inquiry under Batson and unless as I understand it there is a waiver, if that is not brought up now, if it is not waived — .
MR. CUDA [Defense Attorney]: Waiver of what?
THE COURT: Batson. I have heard no motion concerning Batson.
MR. CUDA: Is that the systematic exclusion of all blacks?
THE COURT: Right.
MR. CUDA: I will raise it just for the record, Judge.
THE COURT: All right.
MR. CUDA: I think my recollection that the State excluded 6 out of 7 challenges were black.
THE COURT: That is true. I am going to find on that basis as to some of them at least there does not appear to be any reason. I am going to ask the State to enunciate a reason. I understand as to Jerry Brown, you asked for cause because of his rap sheet indicated prior arrests, no convictions and he didn’t say so on his sheet. I think that is a legitimate reason for exercising a peremptory.”
Following is a summary of the voir dire examination of each of the five other black prospective jurors, a statement of the prosecution’s reasons for excusing them and the court’s response.
(1) Anita Harrell. Ms. Harrell indicated she is single, living in a rented apartment and currently unemployed, but worked in the post office for 11 years in the past. She does not subscribe to any books, magazines or periodicals, but is active in her church, holds office in the church choir and enjoys baseball as a hobby. She also said she would be able to follow the jury instructions and could be fair and impartial.
The prosecutor explained that Ms. Harrell failed to provide answers to a number of questions on her jury summons card, including questions regarding her employment and present occupation. Moreover, certain answers she imparted to the court during the voir dire were either not noted on the card or did not correspond to the information thereon.
The judge found that this was a neutral explanation because it went to Ms. Harrell’s competency to sit as a juror.
(2) Regina Little. Ms. Little indicated she is a divorced housewife currently studying for a GED in order to earn a degree in nursing and lives in an apartment. She has two children, a son in Iowa “doing ten years” and a married daughter. She subscribes to two nursing periodicals, is not active in any organizations and could be fair and impartial.
The prosecutor stated that the State excused Ms. Little because she has two children of abоut the same age as defendant.
The judge noted that historically this has been a legitimate reason for exercising a peremptory challenge.
(3) Walter Thornton. Mr. Thornton stated that he is married, with two children in grammar school, and lives in an apartment. He is currently employed with a company that services airlines and has worked as a scavenger truck driver and as an employee of a custom car shop in the past. His wife is a nurse’s aide. Mr. Thornton enjoys basketball and baseball, does not subscribe to any books, magazines or periodicals and is not active in any organizations. He stated he could follow the court’s instructions and be a fair and impartial juror.
The prosecutor said Mr. Thornton was excused because he “showed more interest in what the defendant was dоing than the questions the court was asking.” Also, he was close in age to defendant.
The judge observed that indeed Mr. Thornton was not looking at him except when questioned. According to the judge, the State’s reason was “very subjective” but “not frivolous because those are things that in the selection process one looks for and it is a non-racial reason.”
(4) Maxine Johnson. Ms. Johnson stated that she is single, rents an apartment and has worked as a cashier for the past seven years. She does not subscribe to any reading materials, enjoys shopping, is active in church but does not hold any office, and could be fair and impartial.
The prosecutor stated that the information Ms. Johnson provided both on her card and during questioning did not give the State “an adequate basis as to what this person wаs thinking about or what position she held.” Furthermore, she was approximately the same age as one of the State’s prospective witnesses, O’Neal, a black woman who was involved in a confrontation on the street with one of the victim’s friends.
With respect to the State’s first reason for excluding Ms. Johnson, the judge found that it was “thin” but nevertheless neutral. He offered no comment regarding the second reason.
(5) Marie Douyon. Ms. Douyon told the court she is married, has no children and has lived in her home at 89th and Yates Streets in Chicago for the past 12 years. She is a nurse’s aide in Provident Hospital; her husband works with computers at the Federal Reserve Bank in Chicago. Her hobby is music, she reads no books or magazines and is not active in any organizations. She indicated she could follow the jury instructions and be fair and impartial.
The prosecutor explained that the State excused Ms. Douyon because she lives near the area where the crime in question occurred, and because her familiarity with that neighborhood may cause her to prejudge the characteristics of some of the witnesses.
The judge observed that a juror who lives close to the scene of the crime may overhear certain things about the case in the neighborhood that are hearsay. He also agreed with the State that such a juror may infer certain characteristics about the witnesses merely because of where they reside. He found that the State’s explanations were neutral and nonracial.
After hearing arguments from both sides with respect to each of the five excusеd jurors, the trial judge concluded that all of the State’s reasons were race neutral and that therefore there had been no systematic exclusion of blacks from the jury.
REVIEW OF THE BATSON HEARING
Defendant argues that by exercising six out of seven peremptory challenges against black members of the venire, the State denied him his right to equal protection under the fourteenth amendment to the United States Constitution.
1
In Batson v. Kentucky (1986),
“To establish such a case, the defendant first must show that he is a member of a cognizable racial group [citation] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors *** raises the necessary inference of purposeful discrimination.” (476 U.S. at 96 ,90 L. Ed. 2d at 87-88 ,106 S. Ct. at 1723 .)
Once the defendant makes the requisite showing, the burden shifts to the prosecution to articulate legitimate, race-neutral and trial-specific explanations for its use of the peremptory challenges. Batson,
WHETHER DEFENDANT MADE OUT A PRIMA FACIE CASE
It is not disputed that defendant satisfied the threshold requirement of the Batson analysis: the record reflects that defendant is black and that the State used six of its seven peremptory challenges to exclude blacks from the jury. However, since the trial court’s determination of whether defendant made out a prima facie case of purposeful disсrimination does not turn on an evaluation of credibility, but rather “depends upon a weighing of the ‘relevant circumstances’ of the case” (People v. Holman (1989),
Ill. 2d at 173,
Relying on the foregoing principles, the State contends on review that the trial judge determined whether defendant established a prima facie case of purposeful discrimination only after inviting the State to сome forth with race-neutral explanations for the peremptory challenges it exercised against blacks. Hence, according to the State, the ensuring hearing was a “consolidated hearing” akin to those conducted in People v. Brisbon (1989),
In resolving this issue we are mindful of the supreme court’s recent admonishment to our trial courts to preserve the integrity of Batson’s analytical framework by first evaluating defendant’s prima facie case and only then permitting the State to articulate race-neutral explanations. (Peoplе v. Hope (1990),
“not only would a defendant’s Batson-conferred ability to make such a case be impaired in the first place, but also it is likely that the explanations themselves would be judged less rigorously than if they had to measure up to Batson standards of specificity and neutrality in order to meet a prima facie case already established.” (Hope,137 Ill. 2d at 456-57 .)
The court distinguished Brisbon and Hooper, wherein the trial court held “consolidated hearings,” rejecting “any general rule that post hoc State explanations may be permitted to act as a thumb on the scales while a defendant’s own prima facie case is being weighed to see whether such explanations will even be required.” Hope,
Turning to the case at bar, however, it is evident from the trial judge’s final decision that he did not hold a “consolidated hearing.” In concluding the Batson hearing, the judge stated:
“I have determined from the State and also [from] the statements concerning their neutral reasons that there has not been a systematic exclusion of the black race in the selection of this jury by the exclusion of 6 or 7 jurors.”
Clearly, the judge heard the prosecutor’s explanations for the purpose of determining whether the State overcame defendant’s prima facie case. Thus we need not address whether the judge improperly considered those explanations in determining whether defendant stated a prima facie case in the first place.
Although, in light of Young, Mahaffey and Holman, we do not approve of the trial judge’s implicit finding of a prima facie case exclusively on the basis of the number of blacks peremptorily excluded by the State, we will not disturb that finding and invoke instead the “presumption that, because explanations were requested, a prima facie case [was] made.” (Hope,
THE STATE’S REBUTTAL
Defendant contends that the trial court erred in finding that the State articulated legitimate, race-neutral reasons for exercising six out of seven рeremptory challenges to exclude blacks from the petit jury. Under Batson, the State has the burden “to ‘articulate’ ‘ “clear and reasonably specific” explanation^]’ for its use of peremptory challenges on minority venirepersons.” (People v. Harris (1989),
The trial court must then evaluate the State’s explanations to determine whether they are sufficient to rebut defendant’s prima facie case. In doing so, the trial court must make “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case.’ ” (Harris,
With respect to three excluded black venirepersons, Ms. Harrell, Ms. Little and Mr. Thornton, defendant maintains that the State exhibited a patent inconsistency in its treatment of black and white venirepersons by accepting white jurors possessing the same characteristics for which it excluded these three black members of the venire. In McDonald (
Defendant points out that in the present case, the State excluded Ms. Harrell because she failed to fill out the answers on her summons card to several questions, including her age, employer’s name, occupation, number of children and work telephonе number. However, the State retained R.L. and B.C., two allegedly white jurors, who also left certain questions blank. The State then excluded Ms. Little, because she stated that she has two children, ages 23 and 25, both of whom are of a similar age to defendant, who is 25; however, J.R., an allegedly white juror, was retained despite the fact that she has three children, ages 20, 25 and 29. Finally, the State excluded Mr. Thornton, 31, because he. was close in age to defendant, whereas B.C. and J.H., two allegedly white jurors, both age 29, were allowed to remain on the jury.
While this kind of an argument should “be given great weight” (Harris,
(1) Ms. Harrell. As the State accurately notes, no impanelled juror left as many questions blank on the jury summons card as Ms. Harrell; and certain answers she gave during the voir dire did not correspond to the information on her card. The record reflects that she failed to answer 8 out of 21 questions. Thus, we agree with the trial judge’s conclusion that the State’s explanation was race neutral and related to Ms. Harrell’s competency to sit as a juror.
(2) Ms. Little. The State may legitimately exercise a peremptory challenge to exclude a prospective juror who. has children of an age similar to defendant’s. (People v. Allen (1987),
(3) Mr. Thornton. As we have noted earlier; the State excluded Mr. Thornton because at age 31, he was close in age to defendant and because during the voir dire he continued looking at defendant, while avoiding looking at the judge. The fact that a prospective juror is similar in age to the defendant is a legitimate, specific, race-neutral reason for exclusion. (Hope,
(4) Ms. Johnson. The State peremptorily challenged Ms. Johnson because the State did not feel it had enough information about her to make an educated decision tо accept her. Such explanations “should be closely scrutinized since they can be easily utilized as a pretext for discriminatory challenges.” (Harris,
(5) Ms. Douyon. Citing McDonald, defendant contends that by excluding Ms. Douyon because she resides near the scene of the crime, the State impermissibly engaged in “a group-based exclusion” which would effectively eliminate blacks from the jury simply because they live on the South Side of Chicago, a predominantly black neighborhood. We recognize the State’s concern that a juror who lives in close proximity to the area where the offense took place may overhear certain information about the offense during the pendency of the trial and thereby lose his or her objectivity. (See United States v. Andrade (8th Cir. 1985),
Defendant does not complain about the removal of a sixth black venireman, Jerry Brown, who, as noted earlier, failed to indicate on his jury summons card that he had been arrested twice before. The trial court refused to excuse him for cause, but found that the State’s use of a peremptory strike against him on account of his criminal record was racially neutral and legitimate.
In sum, we find that the evidence supports the trial court’s final detеrmination that there was no systematic exclusion of members of the black race from the jury. In the absence of other complaints regarding the procedural fairness of defendant’s conviction, we find that defendant received a fair and impartial trial.
REVIEW OF THE SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence used to convict him, contending that the State failed to prove him guilty of murder beyond a reasonable doubt. Our supreme court offers us decisive guidance in resolving defendant's challenge in People v. Young (1989),
Defendant argues that various inconsistencies in the testimony of witnesses raise a reasonable doubt. For example, he notes that Anderson saw him holding a black gun against his right thigh but did not see a hat, whereas at about the same time Cunningham saw him holding a black hat over his right hand but did not see a gun. Also, Cunningham testified at trial that a man walked up to defendant and said “give me the gun, give me the gun” shortly after the shooting; but Cunningham did not mention a gun to the police, relating that the man said merely “give it to me, give it to me.”
Furthermore, defеndant contends that certain evidence used to convict him was too weak to support a finding of guilt beyond a reasonable doubt. For instance, he maintains that the artificial lighting conditions and general confusion at the scene of the crime raised a doubt about the witnesses’ ability to clearly observe what was happening. Also, he contends that the results of the gunshot residue test were fatally inconclusive because (1) defendant could have tested positive for antimony, barium and lead if he worked in a foundry or had handled gasoline; and (2) the police officer who administered the test could not determine positively whether defendant had fired a weapon or merely handled one after it discharged.
Defendant further argues that the evidence was insufficient because it was purely circumstantial: no one saw him fire the shots. And finally, Iva Brown’s alibi testimony and the fact that defendant remained on the scene of the crime and cooperated with the police raise additional questions of identity.
Although proper in closing argument, defendant’s contentions invite us to displace the trier of fact and to weigh the evidence and credibility of the witnesses, which is exactly what the Young standard admonishes the reviewing court not to do. When we interpret all of the evidence in a light most favorable to the prosecution, it becomes clear that a jury could have reasonably found defendant guilty beyond a reasonable doubt. The evidence at trial revealed that both Anderson and Cunningham saw defendant standing against a pole several feet frоm the victim only seconds before the shooting. Anderson saw him holding a gun, and Cunningham saw him hiding something under a hat that he believed was a gun. Cunningham also heard a man walk up to defendant and say “give me the gun, give me the gun.” The gunshot residue test, administered only three hours after the shooting to defendant who had been taken into custody only 10 minutes after the shooting, indicated with high probability that defendant had recently fired a weapon. Furthermore, during cross-examination, Officer Salabura testified that O’Neal identified defendant as the shooter to the police. Coupled with the inference of a motive arising from the fight over the victim’s treatment of O’Neal, this evidence points unmistakably to defendant’s guilt. Accordingly, we affirm.
Affirmed.
DiVITO, P.J., and HARTMAN, J., concur.
Notes
Relying on Justice Simon’s dissenting opinion in People v. Payne (1983),