People v. Coulter

by not error did not commit The circuit court support payments. child unearned annual income. Mark’s deducting above, of the circuit judgment forth the reasons set For is affirmed.

Affirmed. THEIS, JJ., concur.

GREIMAN ILLINOIS, Plaintiff-Appellee, v. STATE OF THE PEOPLE OF THE COULTER, Defendant-Appellant. DWAYNE (6th Division) 1 - 99-0432 No. First District August opinion filed October Opinion filed 2003. Modified Rehearing denied October 2003.— Salinger, Michael J. Appellate Pelletier and Debra R. both of State Office, Chicago, appellant. Defender’s (Renee Devine, Attorney, Chicago Judy

Richard A. State’s Goldfarb and Attorneys, counsel), DeAngelis, People. L. for the Assistant State’s opinion of the modified GALLAGHER delivered the JUSTICE rehearing: upon denial of court this vacated 3, 2003, Supreme States

On the United March 644, Coulter, 3d People v. judgment court’s (2001) (Coulter for further case to this court II), and remanded the Cockrell, 537 U.S. Miller-El v. light of its decision in consideration (2003). reasons stated For the L. 2d 123 S. Ct. 1029 154 Ed. herein, we affirm. sum- comprehensive opinion included

Although previous our preceded that have proceedings court mary of the state and federal history is 16-year procedural case’s action, a brief review of the African-American, was Coulter, 1987, Dwayne here. In warranted ap- On officer. degree police of the first murder of white convicted challenges peremptory that the State’s use Coulter contended peal, Ken- Batson v. venire members violated to strike African-American This court L. 106 S. Ct. 1712 tucky, 476 U.S. Ed. conviction, finding rejected arguments affirmed his Coulter’s made, jury discriminatory selection was although prima case facie concluding that no clearly was not erroneous Coulter, People intentional discrimination occurred. (1992) (Coulter I). Illinois

209, 229, People v. appeal. for leave to petition Court denied Coulter’s (1992). to Coulter, 636, proceeded 602 461 Coulter 146 Ill. 2d remanded the case to court, the Seventh Circuit federal where Gilmore, v. 155 E3d hearing. for a Coulter state trial court new (7th 1998) (Gilmore). 912, 922 Cir. jurist who remand, judge, the trial who was not the same

On claim, along trial, Coulter’s Batson presided at Coulter’s reviewed The trial court jury with the record of selection in Coulter’s trial. excusing for the African- articulated reasons found that State’s pretextual. again jurors American were race-neutral and not court, to meet its contending that State failed appealed to this existed explanations showing legitimate, race-neutral burden challenges used to excuse African- peremptory each of the nine for did the trial court American members. Coulter asserted venire II, 321 Ill. remand. Coulter not conduct a sufficient Batson on or, 654, sought at 248. Coulter new App. trial court alternative, to remand the case to the asked II, 654, 748 hearing. 321 for another affirmed, finding that the trial court N.E.2d at 248. This court II, comprehensive of his Batson claims. Coulter conducted review 656, Supreme Illinois 748 N.E.2d at 250. The Coulter, People v. appeal. for leave to again petition denied Coulter’s 84 (2001). 551,

196 Ill. 2d 763 N.E.2d 321 He appealed to the United Supreme Court, States which has vacated Coulter II and remanded the case to this court for further light consideration in of Miller-El. Illinois, Coulter v. 1230, 194, U.S. L. Ed. 123 S. Ct. 1384 (2003).

Miller-El v. Cockrell A jury Texas convicted petitioner Thomas capital Miller-El of murder and sentenced him Miller-El, 328, to death. 537 U.S. at 154 L. Ed. 2d at 123 S. Ct. at raising 1034-35. After Bat- unsuccessful son claim in courts, the state and federal petition Miller-El filed a Miller-El, writ of habeas corpus. L. Ed. 2d at 123 S. Ct. at 1036. Both the federal district court and the Fifth Circuit Court of Appeals denied request Miller-El’s for habeas relief. Miller-El (5th Johnson, 2001). 261 F.3d Cir.

In opinion Miller-El, its the Supreme Court addressed the (AEDPA) (28 Antiterrorism and Penalty Effective Death Act of 1996 § U.S.C. 2241 et seq. (2000)), power which restricts the of federal courts grant habeas Miller-El, relief to state prisoners. U.S. at 154 L. Ed. 2d at 123 S. Ct. at AEDPA, 1039-40. Under the Miller right El’s to the review the denial of his petition habeas is not automatic. U.S. at 154 L. Ed. 2d at 123 S. Ct. at 1039. For a appeals federal court to consider the merits of Miller- (COA) El’s appeal, Miller-El must seek a appealability certificate of review the ruling. district requirement court’s COA is designed as a threshold for review of appeals intended to delay reduce caused frivolous habeas proceedings. COA, To issue a the court must petitioner find that the “a demonstrated substantial showing of 2253(c)(2) (2000). § denial of a right.” constitutional 28 U.S.C. denying request COA, Miller-El’s for a the Fifth Ap Circuit Court of peals noted that a “substantial showing” occurs when a petitioner has raised issues are jurists reason, “debatable among that another court could resolve differently, the issues or that are issues adequate to encouragement proceed deserve further.” Miller-El v. Johnson, 449, citing McDaniel, 261 F.3d at Slack v. 529 U.S. L. Ed. 2d 120 S. Ct.

Ruling Miller-El’s the United States Court stated that here “[a]t issue are the standards AEDPA a imposes before court of appeal may issue a COA review a denial of habeas relief in the Miller-El, 327, 943-44, district court.” 537 U.S. at 154 L. Ed. 2d at S. at The ruling weigh Ct. Court noted that a COA does not petitioner’s merits of a claim but instead involves “an overview of the petition claims in the habeas and a general of the merits assessment” 950, 123 S. Miller-El, 154 L. Ed. 2d U.S. petition. of the he is not show issue, petitioner need For a COA Ct. at 1039. “reasonable relief; instead, he must show that to ultimate entitled of the constitutional the district court’s assessment jurists would find Miller-El, 154 L. Ed. 2d U.S. at wrong.” or claims debatable 123 S. Ct. at 1040. case, the Court facts of Miller-El’s standard Applying that entitled to a held that Miller-El was his Batson claim and reviewed occurred purposeful that discrimination COA because it was debatable 952- Miller-El, 154 L. Ed. 2d at jury selection. 537 U.S. at the Fifth Supreme 1042-45. The Court reversed 123 S. Ct. at to the federal district Appeals Circuit Court of and remanded case 154 L. Ed. 2d proceedings. further 123 S. Ct. at 1045.

Analysis court, request Appellate At the of this the office the State County Attorney have Defender and the office of the Cook State’s addressing case.1 applicability submitted briefs Miller-El’s to Coulter’s although that Miller-El discussed Appellate Defender contends COA, a also “articulated the relevant the issue of analyzing third-stage Batson violation.” factors to be considered corpus The State that Miller-El involves a federal habeas asserts recognizes Miller-El proceeding governed by the AEDPA and that on remand three-step same court used in Coulter’s case. procedural postures of both cases and find

We first address the in Miller-El does not relate to the AEDPA-related discussion proceedings. previously recognized the Seventh Circuit Coulter’s As using Gilmore, pre-AEDPA habeas was considered petition Coulter’s to the effective petition prior standards because the was filed Gilmore, 917; Murphy, date of AEDPA. 155 F.3d at Lindh v. (1997). Under that pre- U.S. 138 L. Ed. S. Ct. standard, peti- reviewing AEDPA when a Batson claim via habeas tion, after a on the merits a factual determination made by the fairly supported of correctness if presumption entitled to however, whole; presumption record could be rebutted as a 2254(d) Gilmore, § convincing evidence. 28 U.S.C. findings presumption of fact a gave Circuit the state court’s Seventh rights were denied but held that Coulter’s Batson correctness rehearing, petition for Appellate considered the Defender’s We also have dissent, until after the issuance as well as the which was not filed majority opinion.

remanded hearing. the case for another Gilmore, 155 F.3d at 921-22. The Seventh Circuit stated expressed opinion “no on how [Coulter’s claims] Batson would be resolved under the far more deferential rules established the Gilmore, AEDPA.” 155 F.3d at 922.

Secondly, we have reviewed petition certiorari, Coulter’s for writ of which Supreme led to the Court’s vacatur of Coulter II and the remand of this case for our petition, further consideration. In the Appel- the Supreme late Defender asked the Court to “clarify proper analysis the third-stage guidance and give review to the lower courts on correct ‘totality circumstances’ evaluation.” At the close the petition, the Appellate Defender asks Supreme grant Court certiorari “give guidance to the lower courts on what constitutes purposeful discrimination under Batson.” noted,

As previously the Supreme Court has ordered this court to further consider its in Coulter II in light of Miller-El. We therefore consider whether Miller-El demands change a substantive analysis the Batson that the trial court given used on remand. Having weight consideration, Court’s order due and having carefully reviewed Miller-El and its relevance to Coulter’s respectfully court ruling concludes that the Court’s in Miller-El does not affect the validity of the trial court’s analysis of Coulter’s Batson claims. Miller-El, analyzed Court the standard to be used in

determining when federal appellate may issue a COA to review a federal district Miller-El, court’s denial of habeas relief. 537 U.S. at 943-44, 154 L. Ed. 2d at 123 S. Ct. 1034. As the Appellate Miller-El, Defender acknowledges, in the Court addressed the issue petitioner whether the could appeal petition the denial of his habeas 327, 154 and whether a COA Miller-El, should have issued. 537 U.S. at L. Ed. 2d at 123 S. Ct. at analysis Court referred to its as a specifically “threshold” examination and noted that “[w]hile a ruling COA is not ruling the occasion for a on the merit of petitioner’s claim, our determination to reverse the of Appeals counsels us explain concerning in some detail the jury extensive evidence procedures.” Miller-El, 331, 346-48, selection 154 L. Ed. 946, 956-57, 123 Ct. at 1044-45. S. Therefore, admittedly the Court in Miller-El did not base its ruling on merits of Batson but instead discussed whether Miller-El enough COA, support offered evidence to of a which issuance appeal would allow Miller-El to the district court’s denial of his habeas Moreover, considering petition. question, the Court outlined three-step the same that this court used in Coulter II. peremp- that a showing prima must make a First, the defendant facie U.S. at of race. on the basis challenge was exercised tory so, the defendant do at 1035. To 123 S. Ct. 154 L. Ed. 2d (1) cognizable of a a member she is factors: he or prove must three (2) challenges to peremptory exercised prosecutor group; racial (3) venire; suf- from the race members of defendant’s remove an inference that to raise circumstances existed ficient facts and veniremembers challenges to exclude peremptory prosecution used 654-55, II, on the basis of race. Batson, 106 S. Ct. 90 L. Ed. citing 476 U.S. made, the State must articulate showing If has been juror at the issue. justifications striking potential

race-neutral 945, 328, at S. Ct. at 1035. Miller-El, 154 L. Ed. 2d 123 537 U.S. at the trial court considers those stage of Batson arises when The third purposeful if has established and determines the defendant reasons 945, 328-29, 123 Miller-El, 154 L. Ed. 537 U.S. at discrimination. Ct. at S. analysis, the stage of a Batson that it was at the third

Noting of the key credibility issue the in Miller-El that the was Court stated Miller-El, 339, U.S. at 154 prosecutor’s explanations. race-neutral trial 951, The Court stated that the L. Ed. at 123 S. Ct. at 1040. Miller-El’s trial engage credibility analysis in a because judge did not Instead, the trial court occurred to its own decision in Batson. prior 202, Alabama, 13 L. of Swain v. 380 U.S. then-precedent followed the (1965), only required judge Ed. 2d 85 S. Ct. which peremptory challenges prosecution’s examine whether the use Miller-El, 328, 154 L. a 537 U.S. at part pattern of discrimination. hearing pursuant held pretrial Ed. 2d at 123 S. Ct. at 1035. In a and historical evidence Swain, presented Miller-El had both direct in that practice of in voir dire pattern of a and discrimination Miller-El, 537 system at time of Miller-El’s trial. particular 946, 123 331, 154 S. Ct. at 1036. Miller-El’s counsel at L. Ed. 2d at U.S. prosecutors judges testimony of current and former presented African-Americans from they to exclude who testified were instructed 948, 123 Miller-El, 334-35, L. Ed. 2d at S. jury 537 U.S. at service. addition, years held two after Miller-El’s Ct. at 1038. In trial, offered at the original admitted the evidence in order to consider hearing and heard additional evidence Swain Ed. Miller-El, 154 L. claims under Batson. U.S. Miller-El’s that presented Miller-El evidence 123 S. Ct. at 1035. African-American and Caucasian veniremem prosecutors questioned Miller- capital punishment. differently regarding bers their views 331-32, 946-47, at 1036-37. L. 123 S. Ct. El. 537 U.S. at 154 Ed. although Court noted that the prosecutors had offered race- justifications strikes, neutral for their the trial court did not consider credibility explanations because Swain require. did not so Miller-El, 342-43, U.S. at 154 L. Ed. 123 S. Ct. at 1042. The Court stated that statistical raised question evidence as to whether African-American venire solely members were excluded based race, on their noting only one African-American served on the jury “prosecutors peremptory used their strikes to exclude 91% of the eligible members,” African-American venire with 10 of the 14 against strikes used Miller-El, African-Americans. 537 U.S. at Ed. 2d L. 123 S. at 1042. Applying Ct. the AEDPA to Miller- El’s noting case and its task was to consider the debatability of his claim and debate, not to resolve that the Court held that “the statistical evidence alone raises some debate as to whether prosecu- tion acted with a Miller-El, race-based reason.” 537 U.S. at L. Ed. 2d at addition, 123 S. atCt. 1042. In the Court noted that jurors two white “expressed who had ambivalence about the death penalty” empaneled, were while six venirepersons African-American a position. also stated such 154 L. Ed. 2d at 954, 123 S. Noting Ct. at 1043. that the prosecutors’ reasons for strik- ing jurors race-neutral, the African-American appeared the Court stated: comparative juror “Whether would demonstrate

prosecutors’ pretexts rationales have been for discrimination is unnecessary stage, determination at this but the evidence does make debatable District Court’s purposeful conclusion no discrimination occurred.” U.S. at L. Ed. 2d 123 S. Ct. at 1043. The Appellate argues Defender that requires Miller-El this court to remand Coulter’s a case for new trial or for another third-stage hearing. Batson The Appellate Defender contends that in Coulter’s judge neither the original nor the who considered any credibility findings. Coulter’s Batson claims on remand made The Appellate Defender further reviewing asserts that in the trial court’s remand, findings adequately did not the pattern this court consider against African-Americans, of strikes as the Court did addition, Miller-El. In Appellate Defender claims that this court demeanor, prosecutors’ failed to consider the the reasonableness or improbability prosecutors’ explanations of the race-neutral and explanations strategy. whether the had some basis in trial first requires every We address assertion Miller-El juror” Batson a inquiry “comparative analysis include in which a court specifically against considers the strikes African-American potential Caucasian similarly to situated compared veniremembers (7th 2003), op- Cir. Smith, 324 F.3d 922 jurors. In United States Miller-El, the Seventh Circuit Citing was reached. posite conclusion “only one jurors is similarly situated comparison stated that case. factors” and “was not determinative” many permissible comparison of that a Smith, agree with Smith 324 F.3d 927. We however, illustrative; may nonminority jurors can be minority and may I, venireperson in Coulter “a always As stated be conclusive. juror, yet possess a character- an respect accepted similar in one to be totality of challenge on the justifies a based peremptory which istic N.E.2d at I, 3d at App. the circumstances.” any Coulter II lacked Next, Defender claims that Appellate date, that, “no court juror” analysis and “comparative such including review, comparative in a engaged proper has similarly venirepersons and the challenged minority analysis indicates jurors.” 16-year history of this case nonminority situated I, justice who now In Coulter authored in 1992 same otherwise. specifically expressly this court and opinion, dissents from this minority member and the dire of each venire considered the voir I, rejecting that individual. Coulter proffered State’s reasons in its example, 594 N.E.2d at 1174-76. For App. member Mela third-stage regard minority venire Pinkins, I nie the court Coulter stated: her mother worked sought State to excludePinkins because “The (who was named as a Mercy Hospital, where Dr. Hemmerich witness) years of five and six his spent defense between

possible argues explanation pretextual, but career. Defendant that this fairly that Pinkins explanation may be read as concern the State’s had credibility Dr. Hemmerich because he might give more be The same could not hospital at the same as her mother. worked added.) (Emphasis any accepted venirepersons.” said I, 228-29, 594 Coulter 230 Ill. eight excluded analyses I conducted of each of the other of- members, the reasons that the State minority considering venire juror finding the reasons to be each challenging fered for minority venire legitimate Where the excused nonpretextual. juror, ad- the court similarly accepted member situated to rejected minority that the commonality and concluded dressed or her exclu- justified his legitimately member’s characteristics venire I, 225-29, 594 N.E.2d 1174-76. sion. Coulter Kevin Archibald Minority Anthony Powe and venire members they previous to admit to for cause because failed were excluded argued appeal Coulter on charges when asked. criminal When State accepted Hispanic venireperson who had been charged with burglary, the court in I Coulter noted that the failure to admit prior charges criminal is a sufficient race-neutral reason for exclusion and accepted venire member had charge admitted his when asked. I, Coulter 230 Ill. 3d at App. N.E.2d 1174. Igess Melvin was excused based on his employment record and the fact that he fathered children with two different women. When Coulter argued appeal nonminority that no jurors male were asked about the paternity children, of their the court in Coulter I stated:

“In this defendant has failed to [two demonstrate that non- minority venire Igess were] members similar to as to employ- both Thus, ment paternity. a peremptory challenge against person with both justified.” I, characteristics could be Coulter 230 Ill. App.

3d at N.E.2d April Rhem was excluded because of her employment record, and the defense argued that pretextual reason was because employ Rhem’s ment record was consistent with her I, student status. Coulter 230 Ill. App. 594 N.E.2d at 1175. The court found race was not a motivating factor in Rhem’s minority dismissal because a venire member who juror was selected anas alternate awas student. Coulter I, 230 App. 3d at 594 N.E.2d at 1175.

The remaining minority venire members also were excluded for reasons that the court in Coulter I held legitimate were and race- Terry neutral. Edward was excluded because he indicated he was uncomfortable with the penalty. I, death 3d at 225-26, 594 N.E.2d at 1174. Marcina Adams was excluded because of her employment I, as a nurse. Coulter Ill. App.

N.E.2d at Brantley 1174. Teresa was excluded due unemploy- to her ment, and Jeanell Hicks was excluded for her answering hesitation in questions in I, voir dire. Coulter Ill. App.

at 1175. The I court in Coulter affirmed sufficiently those dismissals as gives race-neutral. Coulter I argued no indication that defendant to original Adams, Terry, Hicks Brantley or was similarly situated nonminority venire members who were selected to serve on Coulter’s jury. sum, court concluded: “In defendant has failed to demonstrate from the record that the trial court’s determination of no intentional clearly discrimination erroneous.” I,

The Appellate Defender reiterates that the State used its first six challenges minority strike venire members the “State’s use of peremptory challenges reduced African-American representation from a jury minority.” It is undisputed that a jury defendant entitled to selection discrimination, free from racial ruling that a any However, we are unaware holds. Batson as jurors than minority more jury that contains entitled to defendant is out that again points Defender also jurors. Appellate The nonminority however, struck; were venirepersons of 10 African-American out factor of Batson. That stage third not to the relevant that statistic determines Batson, judge a trial stage of when to the first relates has racial discrimination purposeful case of a prima whether facie circumstances,” including and considers all “relevant been established members, a disproportion- minority venire against of strikes pattern minority individuals, and the level of against such strikes ate use of Batson, jury. 476 U.S. to the compared in the venire as representation 87-88, 1723; I, App. Ill. at Coulter 230 at Ed. 2d at 106 S. Ct. 90 L. those I, this court considered at 594 N.E.2d at 1172. In Coulter 3d showing of discrimination was that a prima factors and held facie I, App. 230 Ill. 3d at 594 N.E.2d made. Coulter on remand from Gil- analysis, the trial court In addition credibility proffered the prosecutor’s considered the expressly more at II, App. 321 Ill. 3d striking jurors. Coulter particular reasons that it had reviewed at 247. The court stated II, App. 321 Ill. 3d at original jury selection. Coulter transcripts prosecution’s with the provided 748 N.E.2d at 247. The court was challenged jurors and considered the striking reasons for all of the circumstances” credibility “totality under a of the of those reasons II, at at 247. The court App. test. Coulter 321 Ill. jurors were selected with those and contrasted the who compared 652-53, N.E.2d at 247. In II, 321 Ill. App. the venire. Coulter addition, number of African- expressly the court considered the African- to the number of jurors American selected relation 652-53, II, App. 321 Ill. Americans in the venire. Coulter jurors twelve-person on the sat N.E.2d at 247. Three African-American jurors. serving as alternate African-Americans jury, with two additional Thus, II, 5 members App. 3d at (35%) African-Americans, a jury greater 14-member were of the (16 African- the venire as a whole than that in percentage of minorities 29%). II, or venirepersons, Americans out of 55 analysis, completing 247. After 748 N.E.2d at case jury in Coulter’s correctly concluded that the selection trial court Batson. did violate impreci “risks of Miller-El’s reference quotes

The dissent (Miller-El, 537 U.S. passage from the of time” and distortion sion 1043) that the trial and states 123 S. Ct. 154 L. Ed. 2d with “was confronted claims remand judge who reviewed Coulter’s this court position than dire and was in no better a cold record of voir to review it.” at 98. The dissent contends that case should be remanded to the trial court to properly address the claim of disparate of jurors. treatment Coulter’s point, To this claims have been substantively rejected considered and on direct ap- Coulter I peal in (by dissenting), by now the trial court on Gilmore, remand from the Coulter v. Seventh Circuit again in Coulter II. this court to acknowledge dissent fails its author’s previous acceptance jury explain Coulter’s or repeated how a analysis of the record same would affect its view.

In summary, because the Court’s discussion AEDPA proceedings, does not relate to Coulter’s the Supreme because did not alter the third-stage Batson analysis, and because previously performed a thorough review of Coulter’s claims under a totality test, of the circumstances affirm we the deci sion of the trial court.

Affirmed.

O’BRIEN, J., concurs. CAMPBELL, PRESIDING JUSTICE dissenting: This case has been now remanded to the Illinois only courts not by the United States of Appeals Circuit, for the Seventh but also by Court, United States Supreme for light reconsideration in Miller-El. opinion “respectfully concludes that in Miller-El ruling Court’s validity not affect does of the trial of Coulter’s Batson claims.” 345 Ill. App. 3d at 86. analysis court’s The majority opinion also questions why my prior dissents did not explain how another analysis of the same my view, record would affect given that I authored I rejecting Coulter Coulter’s Bat opinion in son claim. 345 Ill. App. 3d at 89-90. The question answer can II, be Coulter readily my deduced from in dissent but will be further explained in of explaining why below the course the majority opinion’s analysis of Miller-El is as in Coulter as the flawed now-vacated II. I,

A In Coulter chronology brief case may this be useful. this court remanded for a proper the trial had col- hearing, as court the lapsed hearing an into undifferentiated review defense I, Coulter and State contentions. App. 230 Ill. 3d at 594 N.E.2d at procedure 1171.2 The the trial court then followed was “less than ideal,” as Coulter was unable to attack reasons offered supreme

2Our court has continued to condemn the undifferentiated review reconsider, trial court and the motion to on his until State in this defense counsel hostility toward unjustified, open an exhibited 1171-72. I, 594 N.E.2d App. 230 Ill. Coulter capital case. after for review sufficient deemed the record Nevertheless, this court I, 3d at App. Coulter 230 Ill. that remand. the reasons review of juror-by-juror in a engaged court then

This venire, as as well excluding for members proffered the State ap- where pretextual, were as to those reasons examination whether 225-29, 1174-76. 594 N.E.2d at I, App. 3d at propriate. Coulter 230 Ill. example, For juror-specific. in I Indeed, quite Coulter was analysis this excluding Brantley, Teresa for reviewing proffered the reason ruling respect in this to the court that “deference court concluded I, 3d at 594 N.E.2d at 1175. App. 230 Ill. is warranted.” Coulter Hicks, we excluding Jeanell reviewing proffered the reason for to the trial court’s “[gjiven great deference accorded stated that cred- of the State’s largely on an assessment ruling, which is based clearly errone- ruling was say we that the trial court’s ibility, cannot I, N.E.2d at 1175. App. ous.” Coulter Adams, Moreover, reviewing of Marcina the exclusion concerned rejected argument if the State had been the defense or would possible knowledge psychiatry, of psychology about her questions about their asked other members of the venire have I, 226-27, App. fields. Coulter knowledge of these I a one- ends with N.E.2d at 1174. This court’s had failed to demonstrate paragraph concluding sentence that Coulter clearly ruling was erroneous. from the record that the trial court’s af- I, Ill. at 1176. This court conviction, evidence part firmed because the Coulter’s I, closely balanced. See Coulter leave to petition Our court denied Coulter’s supreme 1170-71. Coulter, People 146 Ill. 2d 602 N.E.2d 461

appeal. of The district sought corpus. then a federal writ habeas petition, the Seventh Circuit reversed and court dismissed but the Gramley, 93 for further consideration. Coulter v. remanded the case Garrett, 189, 201, 784, E.g., Peoplev. Ill. 2d of Batson claims. 139 E.g., (1990). Hernandez v. New necessarily Such error is not fatal. 789-90 (1991). York, 395, 405, 111 S. Ct. 1866 114 L. Ed. 2d 500 U.S. findings failing collapsing the Nevertheless, steps and to make detailed needlessly objection adds the record when a clarify is raised of fact to unnecessarily dif to the number of costly appeals appellate makes review and (1993); Beard, 1077, 1083, 662 People v. ficult. Valentine, People may proof proposition than this case. There be no better of that (7th 1996). remand, F.3d 394 Cir. On the district court granted relief to Coulter, ordering that he be released or retried within 120 days. (N.D. 1996). Coulter v. F. Gramley, Supp. On appeal, the Seventh Circuit affirmed. The appellate federal court stated that this court’s “review of prosecution’s the juror-by- [Sjtate’s justifications juror shows that the challenges, one-by- viewed one, were based on previously recognized reasons legitimate as and (7th non-discriminatory.” Gilmore, Coulter v. 155 F.3d Cir. 1998). Nevertheless, the Seventh Circuit stated that proffered reasons for striking Igess Jeanell Hicks and Melvin “seemed to verge on the ” ‘patently absurd.’ Gilmore, Coulter v. 155 F.3d at 920.

Thus, the Seventh Circuit held that the trial court violated Batson by adhering procedure to a precluded it from performing “similarly situated” on “totality based of the circum- stances.” Gilmore, Coulter v. 155 F.3d at 921. As the Seventh Circuit saw it: juror-by-juror

“[T]he inquiry conducted, the trial court un- supplemented any final look despite at the record as a whole present court, counsel’s efforts practically this evidence to the guaranteed prosecution the conclusion that acting race neutrally.” Gilmore, Coulter v. 155 F.3d at 921. “somehow, Seventh Circuit stated that at some point, the trial

court must evaluate pattern the broader of strikes.” Coulter v. Gil more, 155 F.3d at 921.

However, the Seventh ordering Circuit concluded that that Coulter be released or retried remedy, stating was not the appropriate part: relevant

“[A]n possible, intermediate solution is which require is to to be days released unless within 120 state holds a new hearing on his proper; Batson claim at which the methodology for evaluating is, his claim is followed —that reviewing addition to striking given juror, totality reasons each it considers the the circumstances compares prosecutor’s against strikes against similarly its treatment situated Cau- African-Americans casians. comity possible efficiency the interest of trial, avoiding grant a new we conclude that this more limited proper the writ is the course to follow. We therefore AFFIRM the court, judgment of modify grant the district but its order to days writ unless within court holds a state new Coulter’s Batson claim in opinion.” (Emphases accordance with this added.) (7th 1998). Gilmore, Coulter v. 155 F.3d Cir. remand, judge On a trial than original other ruled against Coulter’s Batson claim. The trial court did not compare the against State’s strikes against African-Americans its treatment

95 “it is this court stated that appeal, On similarly situated Caucasians. in the the trial court’s actions analyze of this court the task II, Coulter App. Ill. 3d at 321 opinion.” Circuit’s of the Seventh wake 248. 654, 748 N.E.2d II. errors in Coulter primary one of the and is

This assertion was II, (Camp Coulter at 253 Ill. 748 N.E.2d See 321 In state court EJ., dissenting part). bell, concurring part & corpus, of habeas the trial a federal writ pursuant held proceedings interpretation which is a reasonable in a manner proceed court must Emerson, People v. e.g., Ill. 2d See, order. of the federal court’s Emerson, our supreme (2000). In 436, 464-67, N.E.2d 319-20 assistance of of ineffective claim also held that Emerson’s court judicata following rejec by the doctrine of res its barred counsel was Emerson, 189 Ill. 727 N.E.2d tion in the federal courts. held that where Indeed, consistently has supreme our same, binding is the federal court’s decision parties and issue are judicata applies, of res the state court even when and the doctrine Nance, v. E.g., People 189 Ill. 2d in error. the federal court is believes Co. v. State Insurance (2000); 142, 146-48, 891-92 Life City Chicago, 252, 257, Board Education of of of (1948). 877, 880 Eyler, 133 Ill. 2d People II in Coulter on majority

The relied Eyler (1989), states: portion but the relevant 549 N.E.2d 268 jurisdiction appellate Federal courts exercise no “Because lower courts, lower courts are not Federal over State decisions except as the decision courts, on State conclusive insofar may the law the case.” lower Federal court become (Emphasis added.) Eyler, at 291. N.E.2d defect, is the law of jurisdictional a federal court decision Absent a binding on all other courts, only can be attacked direct case Foods, Inc., Morey Rymer Fish Co. v. 158 Ill. 2d appeal. 1020, 1024

N.E.2d short, majority my further than dissent go need no II Coulter question cited therein to answer and the case law I in Coulter II. did not adhere to I why again, because the However, yet this court Coulter’s case before vacating step of Supreme Court took the unusual United States of Miller-El.3 II light remanding for further consideration "writ of certiorari correctly petition notes that Coulter’s majority as vacated, pleadings judgment the effect is to leave 3Where a order is Ripley, 842, 847, Flavell v. judgment if no were ever entered. (7th 1999). Dictionary 1342, 1345 (1993); ed. Black’s Law see asked the United States Supreme give guidance as to the proper “ ” “ ‘totality of the circumstances’ and as to ‘what ” constitutes purposeful discrimination under Batson.’ 345 Ill. App. 3d than viewing Rather the Supreme response Court’s order as a to Coulter’s requests, opinion strains to dismiss Miller-El (1) a involving as case: a analysis threshold of whether a of certificate (COA) appealability should have in issued the federal corpus habeas (2) (3) proceedings; not based Batson; on the merits that does not alter analysis. the Batson See 345 Ill. App. 3d at This treat- ment of Miller-El is perplexing, given that the majority opinion concedes that the Miller-El Court’s analysis threshold tracks the three- stage procedure outlined in Batson and was expressly concerned with stage the procedure. third of that App. Ill. 3d at 92.

As below, will be shown Miller-El addresses the issues Coulter raised. Miller-El clarifies Batson in at ways least four that show Coulter II and the majority opinion current are faulty based on a analysis Batson and its progeny.

First, comparative Miller-El endorses a analysis the sort ordered by the Seventh in this stating: Circuit though prosecution’s

“[E]ven the for striking reasons African- neutral, American members of the appear venire race the applica- tion of to these rationales the might venire have been selective and based on racial considerations.” 537 U.S. at 154 L. Ed. 2d at 123 S. Ct. at 1043.

Indeed, majority opinion the here ultimately quotes Miller-El on this point: “ comparative juror ‘Whether a analysis would demonstrate the

prosecutors’ to pretexts rationales have been for discrimination is unnecessary stage, determination but the evidence does make debatable the purposeful District Court’s conclusion no ” discrimination App. occurred.’ quoting Miller- El, L. Ed. 123 S. Ct. at 1043. short, In Supreme the a comparative juror analysis Court decided that raised a question warranting judicial sufficient further review of the Batson claim.

Nevertheless, majority the opinion very attempts to avoid the language it from quotes Miller-El by asserting that a comparison Upon receiving the vacating Court’s order this court parties simultaneously ordered the regarding submit impact memoranda schedule, appeal. ofMiller-El on this a retrospect, briefing more traditional opportunity parties other, respond reply might with an or to each have sharpened necessity issuing the issues and opinion avoided modified rehearing. required permissible, but not members is similarly situated venire II, 92; see Coulter every case. 345 compara- conclusion that majority’s not address the is- every case does required is not juror analysis tive Here, passage the final in this case. as required was sue of whether it clear, trial court was makes quoted v. above of Coulter Gilmore juror comparative encompassed a Batson conduct analysis. II, majority current in Coulter opinion

Unlike now-vacated comply courts need not state that Illinois opinion expressly does not in Coulter order and indisputably valid federal court with the Instead, majority giving proceedings. v. rise to these Gilmore (7th 2003), Smith, Cir. v. 324 F.3d opinion cites United States reading A of Smith and Coulter v. Gilmore. relied on Miller-El which therein Miller-El concluded shows that the Seventh Circuit Gilmore, conclu opposite rather than consistent with Coulter opinion. suggested sion in the rejected

Moreover, Smith, compara Circuit Smith’s Seventh stating that it was not determinative analysis argument, tive not whether Smith, 324 F.3d at 927. The issue here is Smith’s case. determinative, whether is error to but comparative the Seventh Circuit and ignore comparative analysis a ordered its majority opinion in this reaffirms sought by Coulter case. “totality a of the performed in II that the trial court opinion Coulter opinion majority Ill. at 92. The does circumstances” test. 345 3d analysis are explain giving comparative rise to a how the facts they circumstances that “circumstances” or how are somehow not Obviously, it be said “totality.”4 cannot be excluded from the may in would have been determinative comparative analysis whether the to it. the trial court failed consider precisely because Second, analysis, a endorsing comparative to addition gives that I no indication majority opinion does state that Coulter 4The Adams, Brantley Terry, or original argued defendant to nonminority members selected similarly to venire who were Hicks was situated might jury. be to To the extent serve Coulter’s those circum waived consideration of suggesting read as that Coulter has stances, during jury selection raises it should be noted that discrimination reviewing proceedings that a questions as the fairness of the such serious to plain error. alleged error constitutes court should determine whether 610, Blackwell, 74-75, Ill. People v. plain error Blackwell, showed court ruled that the defendant supreme of discrimination. prima case where the record established facie at 614. Miller-El Court addressed the of production allocation the burdens of persuasion proceedings. The Miller-El Court concluded that the denial of a COA was in error because: give

“the District Court did not full consideration to the substantial petitioner put evidence in support forth prima facie case. Instead, accepted question without the state court’s evaluation the demeanor of the prosecutors jurors petitioner’s trial.” Miller-El, 537 U.S.at 154 L. Ed. 2d at S. Ct. Thus, Miller-El makes clear that presented the evidence at the first stage process of the Batson is also to be considered stage at the final process. The Miller-El Court cited Reeves Plumbing v. Sanderson Products, Inc., 530 U.S. 147 L. (2000), Ed. 2d 120 S. Ct. 2097 judgment review of in an age discrimination case. final 154 L. Ed. 2d 1041; Reeves, 123 S. Ct. at see 147 L. U.S. at Ed. 2d at 120 S. Ct. Miller-El thus also clarifies that the allocation burdens production and persuasion generally applicable in rights civil are cases also those applied hearing. be in a Batson The fact that the Miller-El Court relied on an indirect citation to Reeves to make this clarification “Cf.” demonstrates that while the Miller-El Court believed that alloca- tion of these burdens “goes saying,” without the Court had in fact not said it in the Batson context and ultimately required explicitly do completely so. This clarification is consistent with the Seventh Circuit’s directive in this case that the trial court take a “final look” pattern the “broader of strikes.”

Accordingly, majority opinion’s dismissal of the that 9 of fact minority being venire members were only struck as relevant at the stage first clearly Batson is erroneous. Ill. App. See 345 3d at 86. FollowingMiller-El, the disproportionate against use of strikes minori- ties, like the comparative juror analysis, is relevant at both first and third stages analysis. of the Batson The difference between the analysis threshold Miller-El and an actual Batson is the quantum weight of or the evidence required prevail, not the alloca- tion of the of production burdens and persuasion regarding or rules when evidence is to majority opinion be considered. The does not explain why analysis rules to a of apply these threshold a Batson claim in federal habeas a final in a proceedings judgment to discrimina- case, tion an ordinary hearing. but not to

Third, recognized Miller-El specifically disparate questioning that purposeful Miller-El, based on race is evidence of discrimination. 1043.5 As noted 954-55, 123 S. atCt. Ed. 2d at at 154 L. U.S. question- rejected disparate claim of I, this a above, in court have done so. not that this court should makes clear ing. Miller-El I is one of Coulter embrace Indeed, majority opinion’s sudden the discusses the Although aspects. of its more curious above) (as noted reading Coulter I shows that length, at a of Coulter I “final look” at There was no juror-specific. the Batson was to juror-by-juror the review of strikes” after pattern the “broader been may that have by the State proffered reasons determine whether may in isolation neverthe- nonpretextual when viewed deemed valid or as a whole. when viewed less show discrimination court reviewing which a Fourth, the extent to Miller-El clarifies credibility at the rulings on issues defer to a trial corut’s should rejected the no- The Miller-El analysis. stage final of the Batson uncritically deferred have reviewing tion court should that generally, sure, Court stated To the Miller-El trial court. be “[djeferenee reviewing court, analyzes which necessary because dire, positioned is not as the from voir as well only transcripts Miller-El, 537 U.S. credibility determinations.” trial court is make However, 952, the Miller-El at 154 L. Ed. at 123 S. Ct. at “ holding ‘presump- rejected appeals the federal corut court’s where, as strong, is especially [the court’s] tion of state correctness ” here, habeas are one and the same.’ the trial court and state Miller-El, 342, 154 L. Ed. 2d 123 S. Ct. at 537 U.S. 2001). (5th The Johnson, Cir. v. 261 F.3d quoting Miller-El habeas, of federal defer- “[e]ven the context Court also stated judicial review.” imply abandonment or abdication ence does not Miller-El, L. Ed. 2d 123 S. Ct. at 1041. 537 U.S. at Appeals’ the Court of state “questioned] The Miller-El Court interpretation petitioner’s trial court’s dismissive and strained 154 L. disparate questioning.” evidence 123 S. Ct. at 1043. Ed. claim not case, rehearing was judge Coulter’s remand were not the judge. prosecutors original response Igess based on his

5In this the State struck Melvin maternity of his Igess regarding question which the trial asked panel. Coulter children, to the Caucasians on the posed but which was not (7th 1998). Gilmore, On remand from the Seventh Cir. 155 F.3d fact that Circuit, despite the judge failed to consider this the trial factor — employ focusing instead on his proffered the reasons was one of State — compare However, judge did not that record with record. the trial ment Votanek, member, allegedly venire John who employment record another challenged by the State. employment but has similar record original prosecutors. There is no evidence that either of original the prosecutors practiced ever in of judge. addition, front the second In the “at subject evidence the Batson to the usual of risks imprecision and passage distortion from the of Miller-El, time.” U.S. at L. short, Ed. 2d at 123 S. Ct. at 1043. In the judge second was confronted awith cold record of voir dire and inwas no better position than this court to review it. That this court reviewed the record rejected and the Batson claim in I ir- simply Coulter is relevant, given procedural the current posture of this case. The relevant is point that whatever deference is original due the trial (and judge in this context Miller-El suggests too may much have been given in I), Coulter less deference is due a judge to second who was not involved in original the hearing.

Nevertheless, the trial judge second made credibility determina- personal tions based on her experience dehors the record with one of the prosecutors and the prosecutor’s other professional reputation.6 transcript The judge shows that the trial noted that one of prosecu- the tors, soul, second, “God rest his was first a Public Defender. He was *** Attorney, Assistant and State’s at the end of his career he was a Judge Circuit County.” added, Cook The trial judge “I believe never, that I will ever pleasure have the knowing more honest person, person integrity with more ***.” She then stated that other prosecutor “had of reputation the same sort prosecutor as a and also now as a attorney.” criminal defense The judge trial also com- vogue mented that “it in days these politically to be correct with regard issues, to race ethnicity issues, issues,” gender but that “it *** doesn’t seem vogue ourselves, to be as in days these to concern with matters of integrity credibility.” and course,

Of correctness,” Batson is not mere “political matter of but federal be by constitutional law to Illinois followed courts. Moreover, credibility an examination of important is an part stage third analysis; the Batson apparent trial court’s view that these separate troubling reviewing issues are should be to a court. addition, both the Circuit’s Seventh this matter and credibility Miller-El make clear that examination should explanations consider whether striking offered the State for minority venire members equally applicable majority were venire accepted by members Performing State. the comparative analysis 6Nor is this first occasion on which this trial made such comments. (1999). People Morales, App. v. 308 Ill. 3d N.E.2d However, reasons, ruling the Batson Morales for other render was reversed ing point appeal. moot order the Seventh Circuit’s with only complied have

would objec- have focused but also would been consistent with record, jurors established tive facts about veniremembers judge’s personal opinions. trial rather than the that the Indeed, majority opinion fails to mention latest issue, two of the veniremembers did not bother to discuss II, Brantley. See 321 Ill. Rhem and findings II that exhaustive in Coulter concluded specific.” cases, long they “sufficiently are required in all so as are not citing II, People all 51, 76, While not cases Fair, supreme our findings, it must be noted that may require exhaustive judge’s trial juror-by-juror review that the in Fair after a court stated purposes.” (Emphasis for our findings “sufficiently specific were added.) of 76, compara- at 469. The issue Fair, 159 Ill. 2d majority Ironically, in Fair. the analysis present tive not was I, analysis of Coulter but juror-by-juror the champion now chooses to case, above. in this for the reasons stated analysis that is insufficient Brantley being were In the State claimed that Rhem this argued If Coulter that employment history. excluded based on their a white venire member explanations pretextual those were because history Brantley accepted Rhem or was employment with a similar to to make a by State, the that the trial court would have would follow of In the finding specific purpose for the review. sufficiently necessarily analysis, finding such a would comparative context of a all, identify After the exclusion of have to the veniremembers at issue. E.g., one on the basis of race violates Batson. even veniremember 413, 434, (1992); Andrews, 2d N.E.2d 1137 People v. 588 (1988). McDonald, 182, 200, 125 1359 People v. Ill. prosecutor’s discriminatory itself act is not emphasized that a “ by making in the of ‘immunized the absence of such discrimination ” Batson, comparable other 90 L. Ed. decisions.’ Arlington Heights v. quoting Village 106 S. Ct. at n.14, Metropolitan Housing Development Corp., U.S. (1977). n.14, L. Given the case Ed. 2d 97 S. Ct. 564 n.14 law, persons who judge’s general reputation reliance on the the trial her, ignoring the more may a case before while prosecuted have never (now objective analysis required the Seventh Circuit’s order Miller-El) clearly wrong. under indisputably proper limited personal opinion judge’s Nor was the trial on reliance the trial prosecutors. The record shows that reputation of the general have some judge competent generally advocates noted juror “reading profile they like to seat and between of the sort of would original transcript, the lines” of the profiles looked at the each side seemed to developed have for this case. judge may The trial have been However, correct as matter of fact. it is well established the trial court must focus on actually proffered by the reasons the State and presume cannot an unarticulated, explanation race-neutral exists. E.g., Harris, People 123, 184, sum, the majority opinion repeats and magnifies the in errors Coulter II. The in II dissent sufficiently explains my reasons adhering not analysis Coulter I. The applied which United States ordered this court to consider remand, provides numerous additional reasons to conclude that the hearings inadequate. this case have been Miller-El endorses comparative juror analysis. Miller-El put holds that evidence forth support prima case also should be considered at the facie stage final procedure. the Batson The majority opinion only to recognize rule, fails but is based on opposite premise. expressly recognizes disparate Miller-El questioning as evidence discrimination, I, contrary to Coulter majority opinion which the majority continues to embrace. The opinion’s deference to the trial judge is as strained and dismissive as court reversed in Miller-El. Such here, deference is even less supportable judge where the trial original was not the part and based her decision on her opinions personal than speculation, objective rather record before her. Accordingly, opinion’s conclusions that nothing Miller-El adds established Batson and that the trial court’s analysis on remand clearly was sufficient are erroneous. above,

As majority noted questions by what would be achieved remanding Remanding this case the trial court. this case would grant Coulter a proper to the conforms standards required by opinion order Seventh Circuit this case Remanding and endorsed in Miller-El. this case would ensure that community Coulter and members of appeared jury duty who subjected by were racial discrimination the State. Given the Emerson, Nance, opinion’s Gramley treatment of Miller-El, might be more useful to consider the foreseeable consequences reaffirming opinion inadequate that was deemed proceedings the habeas and an vacated that was Accordingly, United States Court. I dissent. respectfully

Case Details

Case Name: People v. Coulter

Court Name: Appellate Court of Illinois

Date Published: Oct 10, 2003

Citation: 799 N.E.2d 708

Docket Number: 1-99-0432

Court Abbreviation: Ill. App. Ct.