*1 Bank & Trust Co. 78 Ill. 2d I 363.) therefore dissent from holding Secre majority tary standing has appeal, nonparty appellant, order him judicial directing to issue JDP. STAMOS, JJ.,
CLARK and in this dissent. join (No. 60857 .
THE PEOPLE OF ILLINOIS, THE STATE OF Appel-
lee, HARRIS, v. JAMES Appellant. Opinion June on denial filed 1989.Modified 29, 1989. rehearing September *9 RYAN, J., MILLER, J., joined concurring part dis-
senting part. Defender, E. Schiedel, M. Robert Deputy Charles Defender, and James Davison, First Assistant Appellate Defender, the State Chadd, E. Assistant of the Office of Defender, of Appellate Springfield, appellant. General, of
Neil F. Hartigan, Attorney Springfield, M. State’s Daley, Attorney, Chicago and Richard *10 General, Rotert, Assistant of Chi- (Mark Attorney L. Heath, Thomas V. and Joan S. W. cago, Cherry, Timothy Assistant Gainer, Jr., Sweeney, Kevin Inge Fryklund counsel), State’s of for the Attorneys, People. of the court: opinion
JUSTICE CLARK delivered indictment Harris, Defendant, charged by James counts with four of County in the circuit court of Cook 38, ch. 1981, pars. 1(a)(1) Stat. murder Rev. (Ill. 9— (Ill. counts of armed Rev. (a)(3)), robbery two through four counts of 1981, 38, 2(a)), aggra Stat. ch. par. 18 — 1981, 38, ch. 10— pars. vated Rev. Stat. kidnapping (Ill. of (Ill. one count of unlawful use 2(a)(3), weapons (a)(5)), count 1981, 38, one 1(a)(4), (b)), Rev. Stat. ch. pars. 24 — 1981, 38, par. ch. (Ill. of murder Rev. Stat. attempted Stat. Rev. battery (Ill. counts of 4), aggravated two 8— armed violence four counts of 1981, 38, 4(a)), ch. par. 12 — (I All of 1981, 38, 2). ch. par. Stat. Rev. 33A — ll. from his involvement alleged these stemmed charges wounded Theresa Woods was an incident which during trial, all of the kid Sr., killed. Prior James, and Jesse dis- counts were violence, and weapons armed napping, missed. Before the case was submitted to the jury, withdrew, State without the armed objection, robbery counts and three of substituted counts armed attempted 38, 4). Stat. robbery (Ill. 1981, Rev. ch. par. jury 8— James, found defendant of the murder of Jesse Sr. guilty (Ill. 1981, Rev. Stat. the at 38, par. 1(a)(1)), ch. 9— tempted murder of Stat. (Ill. 1981, Theresa Woods Rev. 38, 4), ch. of par. Theresa aggravated battery 8— 38, Stat. (Ill. 1981, Woods Rev. ch. par. 4(a)), and 12— armed attempted Theresa Woods and robbery Jesse James, 1981, Sr. Rev. Stat. ch. (Ill. 4). par. 8—
Defendant for the waived death jury sentencing The trial court hearing. found defendant for the eligible death on based penalty presence statutory ag gravating factor the murder had been committed during course an attempted (Ill. armed robbery Rev. ch. Stat. The trial par. 1(b)(6)). court 9— also found no mitigating circumstances sufficient to pre clude the imposition the death It sentenced penalty. defendant to die by lethal for the injection murder of James, Jesse Sr. Defendant was also sentenced to terms of 15 for each of years armed attempted robbery convictions, the terms to run and 30 concurrently, years on the conviction, murder the term to run attempted to the terms for the armed consecutively rob attempted bery convictions. Because the death had been im penalty posed, appealed to this directly pursuant court to Rule 603 Ill. 2d R. (107 603).
Defendant on challenged his convictions various under grounds, which can be four He grouped headings. claimed that he trial of (1) was denied a fair because the of use to prosecutor’s challenges exclude peremptory from the (2) blacks the jury; prosecution’s alleged failure to defense; disclose to the the exculpatory (3) material counsel; ineffective of assistance the (4) prosecutor’s allegedly remarks in summation. Defendant’s prejudicial
136 his can under grouped- various sentence be challenges that his sentence must headings. two Defendant claimed in (1) of various errors claimed con- be reversed because evidence, of the court’s consideration nection with trial of stage at presented aggravation-mitigation a person death defendant killed hearing, penalty 1969, upon a had been dismissed charge in prosequi, nolle (2) alleged un- State’s motion act. of the Illinois death constitutionality penalty United pending, While defendant’s appeal v. Kentucky Batson Court held Supreme States 87, 96, 69, L. Ed. 2d 106 S. Ct. 79, 476 U.S. 90 (1986), prima a 1712, 1722-23, a defendant establish may “that discrimination in selection case purposeful facie the prosecutor’s on evidence concerning petit jury solely defendant’s challenges exercise peremptory the rule an- trial.” The held that Court subsequently Batson applied retroactively cases that to all nounced the time Batson had been on direct review at pending v. (Griffith Kentucky U.S. was decided. 649, 661, S. We 716.) L. Ed. 2d Ct. retaining jurisdic- order supervisory therefore issued trial it to the court for remanding tion of this case but the State used whether peremptory to determine hearing exclude blacks from unconstitutionally challenges trial court determined hearing, At jury. prima of discrimina- case established facie State However, pre- the court concluded tion. use of peremp- reasons for its neutral, sented nonracial prima defendant’s rebutting tory challenges, thereby court, defend- of the case case. return Upon facie claims that and further arguments ant renews his earlier at the Batson was incor- hearing finding the trial court’s rect.
TRIAL Defendant’s convictions stem from events occurring in the hours of early morning February 1983.
State’s chief witness to these events was Theresa Woods, James, a waitress at the tavern owned Jesse Sr. to her she and According testimony, James began closing the tavern at 2 a.m. After she checked closing, out the cash registers, leaving in each. Sometime be- $30 tween 3:30 4 a.m., and James finished and Woods left tavern, to lock the door and set stopping alarm. As Woods and James were a man whom leaving, Woods had never seen before approached them and asked what time the buses stopped re- running. Woods plied that she did not know and continued to walk away with James.
James and Woods walked across 69th Street James’ car. James stopped put cables into the jumper trunk. the man who had Suddenly, approached the pair and asked for the time came towards them again, this time her grabbing Woods coat and pointing gun at her head. legs her, Woods’ out from under slipped and as the man her pulled back she saw his face. up
The assailant ordered Woods James to into get James’ car. seat, Woods went into the rear and following the assailant’s command, James, sat behind who sit- in ting the driver’s seat. Woods testified that from her position seat, in the back and with the aid of streetlights area, she was again able to view the assailant’s face. Her assailant remained position during time the three spent driving around the streets in the area.
The assailant ordered James to drive the next cor- ner. corner, When arrived at the they assailant then ordered James to turn into an drive to the end of alley, it, and stop car. James The assailant complied. if give kill James and did not they
threatened to Woods not “care him He also told them that he did $300. caught them if he was about” two of because killing that he had he “up replied would be James good.” some at his tavern. The assailant then told James money *13 the so, to to the did stopping drive back tavern. James Street, just car in an to 68th behind perpendicular alley the tavern. into the tav- go
The assailant then ordered Woods to the told that if did ern and retrieve He her she money. minutes, the he would money, not return in three with tavern, ran the the opened kill James. then to Woods to door, and over the counter the cash register. jumped from both cash paper money registers She took all the it, ran back outside. and, without to count stopping that car had been returned, she noticed the she When now in- and was at the original moved from its position When she the and 69th Street. alley tersection her to in. car, get the the assailant ordered reached no for there need James that was protested, saying car. The assailant then told James Woods to reenter he, assailant, “running to “shut and that up,” the assailant that she then saw this.” Woods testified himself, head. and shoot James James toward pull ran, a short falling and turned and tripping Woods on her left side the car. She landed distance from towards her The assailant came turned over on back. He her face. her, gun his at her, stood over and pointed not do “[Pjlease She began pleading: said: “You bitch.” air to protect her hands in the me,” to and raised do this She fired. as the assailant rolled to her left her face. She down, realizing face remained lying then shoulder. right entered her that a bullet had point several position to remain in She continued After a few seconds she minutes, dead. to be pretending first on away, footsteps person running heard the and then in an pavement through growing weeds lot on the north side of the street. After several empty passed seconds had she stood and saw James on up lying She car now col- ground. also noticed had lided with the to the glass building window a adjacent She then ran back into the alley. bar called po- lice. officer Abraham Wilson
Chicago police testified he arrived at scene a few after 4:18 a.m. He minutes met Woods, said she man Theresa who and a had been shot. Officer Wilson then James on saw lying ground and went him. over Officer Wilson testified told James Wilson that an assailant reached over and shot James and that “he didn’t have do that.” then ambulance, Officer Wilson called for an which Woods took and James to a later hospital. James died of a bullet wound head.
In order to Theresa impeach testimony, Woods’ *14 defense Daniels, called Rene Chicago officer Offi- police cer Wilson’s and partner, Chicago police detective Geraldine Perry. Officer Daniels testified that pro- Woods vided Daniels with a of the description assailant from which Daniels inferred that the assailant 5was feet 6 tall, inches inches height several shorter than that of the defendant. Detective who Theresa Perry, interviewed Woods in Billings testified that told Hospital, Woods that Woods Perry had seen the James defendant and in the car as she from the tavern struggling emerged with the car money, moving, was and that she saw it collide with the on the north side of building 69th Street. Woods did not tell she had Perry approached car, driver’s side of the or that she heard words any spoken between James and offender. Defense counsel also cross-examined Theresa about Woods statements she had at the to a Dr. Marion given hospital Chung, but Dr. to testify did not call these Chung defense
statements. that, he driving was
Cleveland Johnson testified he of 63rd and State work, at the intersection stopped at 4:15 a.m. at the intersec- Streets While approximately tion, a man out from the State he noticed under running man, identified as Street This whom Johnson underpass. defendant, of 63rd and State corner stopped a traffic control box. Johnson Streets and ducked behind was wagon turning then noticed that a police patrol After the police pa- from 63rd State Street onto Street. out from trol had defendant wagon by, stepped passed Meanwhile John- and crossed the street. behind box son, defendant, turned slowly to watch continuing Street. Defendant his off 63rd Street and onto State car side alongside passenger behind and began running moving hit- car. began of Johnson’s still When defendant hand, left with his Johnson the side car ting car, side and passenger reached over to stopped Defendant then inches down. rolled the window several As ride Street. Johnson for a to 51st offered Johnson $5 with offer, reached down considering his at the waistband of tugged pants. his hand and right Of&cers Michael Ted Kurzweil of the Con- Grady sitting that at 4:20 a.m. were they rail testified police Street, on 63rd parked the front of a Blazer seat Chevy offi- Chicago police one of State Street. Two block east the de- Conrail officers cers came the two gave connection looking of the man were scription they black, “a male and James: shootings with Woods ’fro.” The Con- large with wearing jean jacket blue and 63rd corner of State rail then drove officers *15 description, Streets, fitting saw a man where they This court as defendant. and identified they whom car. Officer moving alongside slowly man running in his holding gun defendant was testified that Grady hand. The right Street, two officers turned down State car, to catch sped up Johnson’s and in front of pulled up it. left their own car and their They guns at pointed defendant just as Johnson was considering defendant’s offer of five dollars a ride. Officer Grady ordered “freeze” and his gun. drop According Grady, defendant placed gun his waistband and said that he “gave Officer then up.” Grady pushed defendant over the car, hood of Johnson’s patted defend- ant down, and took .32a caliber revolver from his waist- band.
At trial the prosecution’s on ballistics expert testified that, in his this revolver opinion, possessed characteris- tics identical to those of the which fired the weapon bul- let recovered from James’ head. He also testified that he had examined the on 12, 1983, revolver two February after the days incident, that, in his opinion, been fired three times before that date. shortly after the
Shortly shooting, Chicago officers police vis- ited Woods in her hospital bed showed her 10 photo- faces, graphs including one of the defendant. From this Woods selected array, defendant’s photo, and identi- fied him as her assailant. She also identified defendant in court.
At trial, defendant admitted to the man ar- being rested officers, the Conrail but denied that he was Woods’ assailant. that, Defendant stated on February 1983, he lived Street, alone at 1809 East 71st in an next apartment door to his mother’s At apartment. ap- proximately defendant went p.m. evening, meet Brown, Marie sisters, one of his at the Toast of the Town Lounge 71st Street and Island Stony Avenue. He with sister stayed at the until lounge a.m., when he walked her the half block to her home. Defend- ant her her accompanied into apartment and her helped move some furniture. He left her some time apartment *16 second at 70th
later and to the house of a sister went wife, and There he called his Street and Avenue. Harper of 71st Street and after a while walked the corner wait for a Island to bus. Stony Street
After a minutes he realized the 71st few to- late, north began walking did not so he bus run he Street, where he knew could catch bus. wards 63rd there, left the at the corner After a bus he bus catching and Streets, a short distance of 63rd State walked and the north- tavern, waiting stood in a corner front of he noticed waiting, bound State Street bus. As he was of north State Street in front car traveling slowly along knocked car, over to the the tavern. Defendant walked 53rd for a ride to window, on the and asked the driver rolled his window. Defendant The driver down Street. he was driver for the ride. As offered to pay $5 and two offer, a truck” pulled up this or making “jeep their they men with out. jumped pointed When guns the air. defendant, at raised his hands in guns he arrested testimony, defendant’s when According officers One of the two gun had no in his possession. he was car, him to the hood of told lean over Defendant testified then handcuffed and searched. from defendant’s pos- the officer did not take any object session. sister, Brown, testified that she
Defendant’s Marie of the Lounge at the Toast Town was with defendant 9, 1983. Accord- night of February from 11 on p.m. not at 3 of left the Brown, lounge the two them ing house, to Brown’s a.m. 2:15. then went They but at move some furniture. her helped where defendant a.m. left her house at 2:45 Defendant then defend- trial, jury At the found conclusion murder, bat- murder, aggravated attempted ant guilty tery, attempted robbery.
DEATH SENTENCING HEARING verdicts, After the its jury returned State moved to hold a death sentencing Defendant waived hearing. his to a at At the right jury first hearing. stage the death hearing, all qualification stage, evi- dence presented trial was admitted In by stipulation. addition, the defense Dr. called Marion Chung, physi- cian who had interviewed and treated Theresa Woods *17 after the shortly shooting. State argued defend- ant for eligible was the death because he penalty was over 18 of at years age offense; the time of the the kill- ing took in the of place course another felony, attempted armed and Jesse James robbery; was killed actually defendant.
Dr. testified Chung to statement made by Theresa Woods. The defense argued statement im- peached Woods’ at trial and testimony established that the had not taken killing place the during course of a robbery. to According Dr. Theresa Chung, Woods stated that “a gentleman had come into her working place and had shot the owner and when she saw that she happen and to fell, turned tried flee. She the bullet hit her right shoulder the She fell ground back. to the and she hit her chin. After she felt the bullet in the shoulder right she fell to the ground.”
The trial court found eligible that defendant was for death penalty (Ill. Rev. Stat. ch. 9—par. 1(b)(6)).
During the second of death phase hear- penalty ing, the State aggravation-mitigation phase, intro- duced evidence of defendant’s eight prior convictions: four for for theft, two armed robbery, and one each burglary robbery. presented State Additionally, that, evidence 15, 1969, on April defendant killed a per- son named Green. Gary Although State had initially it moved to nol- with that
charged killing, the defendant 27,1972. on January at a held charge hearing pros examination of direct began after the State Shortly defense counsel to this earlier killing, its first witness to the witness testimony he objected stated that sidebar, de- sidebar. At to be heard asked he subpoenaed police stated that fense counsel first received yet and had not shooting the 1969 reports on discussion, defense counsel stated further them. After received, transcript ordered, but not yet that he had charge at which the 27, 1972, proceeding of the January then took place: The following colloquy was nol-prossed. Now, are you point “THE is this—is COURT: im- transcripts have be able making that should you peach? Yes.
MR. KUNZ: total your point? That is THE COURT: state first is that my point MR. KUNZ: Well up in now prove aggravation should not be allowed or ’72. was nolled in 1971 on their motion case which not a You are satisfied THE COURT: finding guilty?
MR. KUNZ: Yes. finding guilty? not a
THE It was COURT: *18 I am satisfied with that. MR. KUNZ: any have you All Insofar as—do right. THE COURT: by the that a nolled cannot be used the effect case law to aggravation? State
MR. KUNZ: No. anything passage Is there about
THE COURT: your point? to make incorporating are you time telephon- I like—I have been Yes. would MR. KUNZ: my bring time to thing I need some for one ing well,— or in the bring I like to brother witnesses. would rebuttal when I transcript to the stipulate the State will unless it, testimony. his get that that was the time all Well, will be allowed you
THE COURT: me.” Excuse bring in witnesses. necessary is After some discussion as to whether the witness who had currently testifying testified at the previously 1972 nolle prosequi defense counsel “I hearing, said: am that I just suggesting ask to recall this might witness to reopen cross examination in my the event that the tran- I ordered script ago weeks shows that this witness did testify.” The court “All responded: right. well. The Very record will show that.” There is no further indication of on defense any ruling counsel’s initial to the objection witness, State’s first or on counsel’s testimony ar- gument that the State should not be allowed to introduce in aggravation facts relating to which the charge State moved to previously nol-pros.
The State’s first witness was Lynn McDonald. At the time of Gary Green’s death in McDonald lived in the same housing project as Green and defendant. Mc- Donald belonged to a gang known as the while Disciples, defendant belonged to a rival gang, Blackstone Rangers. bribery McDonald had convictions theft.
McDonald testified that on 1969, he was on April the fifteenth floor of an apartment building with several other persons, including Green and Gary brother, Gary’s Rochester At Green. approximately p.m. they heard gunshots from coming downstairs. all went They down- stairs to the front of the building and to a wall which separated from building school. Green nearby Gary went over to the east end of the wall and looked over As top. Green did Gary this, McDonald saw defend- ant and another in the person schoolyard opposite the wall. He rifle saw a in defendant’s hands. After a few gang slogans were out yelled wall, from both sides of the McDonald saw fire rifle, turn and walk After away. moment, he saw defendant turn again
146 a where Green was place fire shot towards Gary standing. Green, also Green, Gary
Rochester brother tes- he was Green tified that when was shot. Gary present Green, McDonald, he, to Rochester and According Lynn all at the wall between the school present others were on 1969. building p.m. and apartment April After a shot all fell to the a ground. heard and They of the while Green rose and went to east part Gary him, as did Rochester wall. McDonald followed Lynn Green heard Green. As were Rochester a they going, He then walked to the wall up top second shot. another running away and defendant and person saw from the towards the street. wall Nimocks, po- a Rudolph Chicago State also called he investigated lice testified that had officer. Nimocks and interviewed Green killing Gary a Rochester Green. Over hearsay McDonald and Lynn and that both McDonald Green he testified objection, heard wall, at the a told him that were they standing the wall to shot, shot, looked over and, hearing after a standing holding gun, see defendant —first then running away. at the 1972 nolle had also testified
Rochester Green had been time he stated he hearing. At prosequi shooting, field at the time on ball playing brother, his person person he had who shot seen “Rat,” and was not the nickname of who who had defendant. the bullet testimony that expert
The defense adduced from been fired could have Gary only killed Green which from a rifle not have fired and could been handgun, had seen testified he the one McDonald such as Lynn fire at Green. Gary into evi- introduce Defense counsel also attempted State’s Attorney assistant dence statements made *20 at the the assist- nolle At prosequi hearing. hearing ant State’s stated to the court: Attorney honor, information, first
“Your based on this and I would told boy, indicate as I Mrs. Janie Green and also her victim, on the being very their related to I am im- part, pressed the their very impressed by and State was can- dor their and their by appearance apparent and search during for the this matter pend- the truth time had been who, fact, ing they when found out in the actual was murderer, they called it to our this morn- since attention time, ing, being would at in only State this interested honor, justice, your prosse move to nolle this case.” At also sentencing defense counsel at- hearing tempted introduce evidence that at the nolle prosequi hearing, the court sustained the State’s motion to nol- pros and stated: “The should record indicate this People instance, State Illinois in has done what feels is and are be com- right, they the.court mended for their actions.” theAt sentencing hearing, the court sustained the objection State’s to all these statements.
Defendant presented following evidence in mitiga- that, tion. He testified as a he had intimi- youth, been dated members by gang and forced to protection pay money. Since he seldom any had he money eventually formed for own his which, his own he protection gang, admitted, later became affiliated with the known as gang However, Blackstone he Rangers. killing denied Gary Green. He first was sent to Cook County jail age of 16. During in he admitted stay fighting prison with other inmates but that he in fought only testified order to himself from homosexual protect During rape. this first in he often to disci- stay prison was subject pline. a second he model in-
During stay was a prison in mate. He art classes, never disci- taught subject was never and received sev-
pline, segregation, placed eral He commendations. received one commendation inmate who been stabbed several helping fellow in the chest in a incident. Defendant gang-related times lay bleeding the wounded inmate he approached inmate to persuaded help another gallery, prison After him man to prison hospital. wounded carry commendation, defendant wrote to prison receiving he in ad- good-time receive credit asking authorities dition to the commendation. evidence of his long-stand-
Defendant also presented for, in, art, his testi- talent and interest both own ing of his many paintings. the admission of mony, his current testimony Defendant also presented *21 all that he with complied officer. She testified had parole had to his and regulations pertaining parole rules and Finally, himself of defendant fully supervision. availed Warnken, at Anna and Fred testimony of presented three had for stayed whose Kansas farm defendant they 1982. both testified that They weeks in October invite him to with trusted defendant and would stay again. them court, aggra-
The trial evidence assessing killed that defendant had found vation-mitigation phase, a and Green, history had long significant and Gary addition, In the court found criminal activity. Sr., James, killed and had Jesse intentionally defendant so. The court when he did cruelty had exhibited extreme While present. noting factors to be mitigating found no been may originally viciousness have defendant’s himself, need to protect tactic motivated defendant’s “vi- inherently was now concluded that defendant defendant’s artis- to find that cious.” court refused factor; it found tic was a rather mitigating talent that he it indicated his offense because aggravated talent Finally a life of crime. alternative to an possessed aid to the defendant’s the court considered whether concluded that inmate was but mitigating, wounded credit indicated asking good-time defendant’s letter motivated. The aid had selfishly defendant’s been evidence,” court found “no factors within mitigating The court also sen- and sentenced defendant death. tenced for at- imprisonment defendant 30 years’ on each conviction for at- murder tempted years’ armed murder tempted robbery, attempted term to run to the two at- consecutively conviction terms. armed conviction tempted robbery HEARING POST-TRIAL defendant hearing repre- At a which was post-trial counsel, sented new demonstrate sought that he was entitled to a new trial because of the alleged State’s al- of his incompetence original attorneys, witness, the State’s leged alleged concealment alteration of the of certain other witnesses. testimony Born,
At Kunz and hearing Jamison Russell trial, testified on his defendant’s behalf. attorneys Kunz through discovery testified that he had received which stated that defendant’s police reports apprehen- sion had “cleared unsolved armed rob- previously up” beries, Kunz testified that shootings. as well several he that this information had been told officer by police false, and that officer would have been police that, available to so Kunz testified while defend- testify. *22 ant him to as impeachment, asked use evidence Kunz did not do so. Attorney
Kunz also testified that Assistant State’s the trial that during Daniel Franks had informed Kunz Chung, Dr. Marion State would call as witness Theresa On April who had treated Woods. physician trial, Kunz, 26, 1984, the when day keeping second Dr. face,” Chung’s about casually inquired “poker whereabouts, Dr. the State’s told Kunz that Attorney Kunz Chung was on vacation and “out of town.” testi- fied that he did not the matter further because pursue he he Theresa impeach believed that could adequately Detec- Woods’ Officer Daniels and testimony by calling tive and that further would Perry, impeachment only Born, tend to confuse the Russell an who jury. attorney trial, Kunz assisted also testified during State’s statement Dr. where- Chung’s about Attorney’s abouts.
Kunz he although further testified was aware a missing that defendant suffers from lower front tooth he slight did not cross- resulting speech impediment, examine she noticed the Theresa Woods about whether Kunz missing tooth or the speech impediment. Finally, testified that he never cross-examined Theresa Woods about defendant’s moustache. re-
Dr. Marion testified she had in fact Chung from the office to Attorney’s ceived a State’s subpoena then told an assistant defendant. She testify against that she would return McKay, State’s Attorney, Timothy 25, 1984. She in from her vacation on Wednesday, April fact returned from her vacation on that On fol- day. of the State’s 26, she went to an office lowing day, April conference room. She was taken into a small Attorney. witnesses, officers, were also in Two other police Daniel while, room. After a Assistant State’s Attorney and began talking Franks entered the conference room involved posi- to the officers. conversation police saw defendant they tion of the two officers’ car when stated that the intersection. Both officers across running inter- next to the immediately their car was not parked one car section, length away. but instead was parked officers, the car disagreed stating Franks with from which corner —a position closer to the probably of defendant as he had a view would have better they
151 ran the intersection. The conversation continued across hour, for an agreed two officers eventually the car closer must have been to the intersection parked than had remembered. they
Dr. also testified that she had a conversation Chung with Franks. Franks had the medical rec- Chung review Woods, ords she had written Theresa which concerning included had Chung a record what Woods told about Franks then times if shooting. Chung asked several she was sure she absolutely that what had written an her. accurate record what Woods told Franks to Chung minutes, conversed with for 20 15 finally informed that the Chung medical record was “totally opposite” of Woods’ trial testimony.
At the post-trial court hearing denied defense counsel’s motion to dismiss and motion supplemental a new trial. It found no of counsel, ineffective assistance no the State to hide attempt by witness, and no at- to tempt alter witness testimony.
We now consider the issues raised defendant.
THE CONVICTIONS Prosecutorial Nondisclosure Defendant first claims that prosecutor’s apparent misrepresentation of Dr. Chung’s whereabouts and fail- ure to disclose that she would Theresa impeach Woods violated the prosecution’s disclose relevant obligation exculpatory material the defense. Even assuming prosecution fact Dr. misrepresented Chung’s whereabouts or failed to her disclose impeachment evi- dence, acts, we do not these agree under these cir- cumstances, constitute error.
The defendant concedes neither trial of his attor- neys requested that specifically prosecution produce Dr. witness, Chung or any otherwise infor- provide v. Brady Maryland
mation
about her. Under
215, 218,
1194,
U.S.
L. Ed. 2d
83 S. Ct.
1196-
to disclose exculpatory
has
prosecution
duty
In the
material
the accused
ab-
upon specific request.
Brady
to this
sence of a
does
specific
apply
request,
*24
has
However,
case.
the United States
Court
Supreme
has a
to
duty
also
the
recognized
prosecution
pro-
vide certain
material
to the defense even ab-
exculpatory
v.
(United
Agurs
States
(1976),
sent a
specific request.
111-12,
342,
97,
354,
427
49 L.
2d
96 S. Ct.
U.S.
Ed.
Under Agurs,
to
2392,
the
dis-
2401.)
duty
prosecution’s
close
to evidence “so
only
clearly
absent
extends
request
the
gives
pros-
of a claim of innocence
supportive
107,
at
49
(427
ecution notice
to
U.S.
produce”
of
duty
351,
Ed.
96
and which “creates
2399)
L.
2d at
S. Ct. at
did
otherwise
exist”
(427
a reasonable
doubt
not
112,
355,
S. Ct. at 2402).
U.S. at
testified the same Chung, already as recorded Dr. were cal records in fact the defense available to the defense which may The defense used Theresa Woods. to cross-examine Dr. from having marginal have achieved some benefit statement, Chung particularly testify impeaching Dr. with the defense Chung agree po- since appeared with sition that this statement was inconsistent actually at trial. The defense testimony might Theresa Woods’ intended, benefited, also have as it have if the may pros- ecution its to call Dr. original plan had carried out as its for the Chung own presumably purpose witness — case, Theresa wounds. In that describing Woods’ defense have achieved the minor tactical advan- might tage which would flow from eliciting impeaching statement from the mouth own wit- prosecution’s ness. it was these considerations of tactical Presumably which defense Kunz advantage led attorney casually face,” as to the whereabouts inquire, keeping “poker of Dr. But these minor tactical Chung. can- advantages to the compare solid evidence defendant’s guilt— his near the particularly presence scene of the crime in possession of the murder and the iden- weapon, positive tification victim. surviving
Moreover, it is far from clear that Dr. Chung’s testi- *25 would have been mony Theresa Woods’ truly exculpatory. statement to her was brief. Dr. inter- extremely Chung’s est statement, in the as she herself admitted during medical, hearing, not She did not care legal. about the details of the crime but about the location only and cause of Theresa Woods’ wounds. aWhile investi- police have gator might further into who inquired exactly did what, when, where, how, Dr. was satisfied Chung once she knew that the bullet had struck Theresa Woods Moreover, her back shoulder. right the statement it- self, as Dr. recorded is of an inter- Chung, susceptible pretation consistent with trial Woods’ testimony.
statement does not assert that Jesse directly James was shot in the tavern “a but that had come into gentleman her working place shot the owner.” (Emphasis added.) While defense have nevertheless made might some out of the capital remaining inconsistencies be-
tween the statement and the trial incon- testimony, these sistencies are not so severe as to undermine confidence in the outcome of the trial. a fortiori,
The same reasoning possi- to applies, Dr. could have testified to the bility Chung prosecu- that tor’s two officers. say Conrail should coaching We the outset that had Dr. witnessed an Chung attempt to this might differently. suborn we resolve issue perjury But she not prosecutor did not. The did tell the two po- lice to that had seen the defendant with officers say they a that had seen gun. already were convinced They they However, the defendant with a also gun. they apparently believed were farther the curb from they slightly their than the was consistent with thought prosecutor view of Thus the to convince sought the gun. prosecutor them con- must have been they parked position Such an effort is permissi- sistent with their observation. would ble, and effect of impeaching testimony to the jury have been diminished the instruction (Illinois interview witnesses right an has the to attorney Criminal, (2d Pattern Instructions No. 3.10 (IPI), Jury so en- ed. It also have far as to 1981)). gone would testimony able to refute the Conrail officers’ At him in of the gun. had found they possession their abil- best would have raised a minor doubt to had oc- of events recall details which ity precise conclude curred before. we cannot Again, over year of this would have created disclosure evidence of a outcome. reasonable different probability Moreover, otherwise, the prosecution were we hold would an burden. It would be be saddled with impossible upon running commentary forced defense a give prosecu- all of its with its own witnesses. Any interviews *26 to “al- tor such a rule would be forced confronted with of routine low of his files as matter complete discovery v. Agurs States (United 97, 427 U.S. (1976), practice.”
155 109, 342, 353, 2392, 49 L. Ed. S. 2d 96 Ct. Such 2400.) would, fact, rule defense give of much discovery than is greater scope by the civil enjoyed typical litigant, ability whose to discover the case other side’s is limited attorney-client privilege work-product rule. Whatever the intrinsic merits criminal providing disclosure, defendants with such massive we decline to hold it is constitutionally required.
Ineffective Assistance of Counsel Defendant also his argues that failure to attorneys’ Dr. or subpoena to use the Chung medical record im- peach Theresa him Woods denied his sixth amendment right to effective assistance of counsel. It should be also that, noted at the his post-trial hearing, although not in here, brief defendant claimed ineffective assistance of counsel based number of other upon such as grounds, defense counsel’s failure to alleged use available informa- tion to some of impeach the State’s witnesses. All of these claims are without merit.
In v. 668, Strickland 466 U.S. Washington L. Ed. 2d 674, 104 S. Ct. United States Su- preme Court clarified the standards ineffec- governing tive assistance of counsel claims. To prove ineffective as- sistance the defendant must first demonstrate his performance counsel’s meet failed to reasonable profes- sional Second, standards. the defendant must demon- strate that, a reasonable but for un- probability counsel’s professional errors, result proceedings would have been different. (Strickland, 466 U.S. at L. Ed. 2d at S. Ct. at In are 2064.) this case we unable to conclude that counsel’s failed performance meet reasonable professional standards. Even were we conclude, so find that we defects in counsel’s any per- formance were not so as to severe demonstrate a rea-
156 result the de- sonable of different absent probability fects. to
First, do not find that decision not we counsel’s profes Dr. a failure to meet reasonable Chung call Court has Supreme sional standards. United States for attorney per made clear the standard proper “reasonably is that of effective assistance” formance v. Washington (1984), (Strickland 668, 687, 466 U.S. 80 674, 693, 2052, Ct. which is 2064), Ed. 104 S. L. 2d “ of attor of demanded range competence ‘within the ” 687, U.S. at 80 L. Ed. 2d in criminal cases’ neys (466 McMann v. Richard 693, 2064, S. at 104 Ct. at quoting son 763, 773, 759, 771, 25 L. Ed. 2d 90 (1970), U.S. of Ct. Given the circumstances 1449). variety S. of de range legitimate faced defense counsel and defendant, how cisions best regarding represent must be of counsel’s scrutiny performance "[jjudicial (Strickland Washington v. deferential.” highly 674, 694, 104 S. Ct. 668, 689, 80 L. Ed. 2d 466 U.S. fact, In ineffective claiming 2065.) must a strong presumption assistance overcome of sound product action of counsel was challenged at (466 of U.S. incompetence. trial and not strategy The defend 694-95, 2065.) S. Ct. at 80 L. 2d Ed. this presumption. has to overcome ant failed is a Chung to call Dr. counsel’s decision Defense on-the-spot, of the kind of seat-of-the- good example defer- which deserves judgment judicial pants attorney whether call Dr. as to ence. Defense counsel’s decision and under made relatively quickly, had to be Chung the medical reports While circumstances. fairly trying were available Dr. statement Chung’s containing aware until counsel was not trial, counsel before of content statement opening prosecutor’s had no way Thus counsel Theresa testimony. Woods’ until report up medical ascertaining value point. Once aware of the possible between discrepancy and the statement in the testimony medical report, counsel for eventual prepared cross-ex- impeachment by amining Woods about the as as discrepancy, well about other inconsistent allegedly statements she had made to Officer Daniels and Detective Perry. at that Presumably, point counsel was still on acting assumption that the prosecution would call Dr. Chung witness, its own that he could complete impeachment of Woods by *28 cross-examining Chung. on
Only after day Woods testified did defense counsel learn that the prosecution did not intend to call Dr. At Chung. defense point, counsel was forced to decide whether to Dr. subpoena as a Chung defense wit- ness, and whether to perhaps seek a if continuance nec- testified, As counsel essary. he was aware that the deci- sion turned upon value of Dr. Chung’s testimony. While he believed that Dr. Chung’s testimony might be valuable, he also believed that Woods’ could testimony also be substantially impeached by the of the testimony two police officers. As he testified at the he felt hearing, that further impeachment have might only confused the jury. Apparently prosecutor’s statement that Dr. Chung was out of town, thus a necessitating continu- ance, tipped the balance against Dr. calling Chung as a witness.
Given the marginal value of Dr. Chung’s testimony, we are to unable say this decision violated reason- able professional standards. Counsel was unaware of Dr. own Chung’s belief to the of Woods’ meaning state- ment. He believed the other inconsistent statements given to the by Woods two police officers es- adequately tablished impeachment. And further while investigation matter, such aas call to Dr. Chung herself, might assessment, have his changed we cannot conclude that his decision not to investigate further inwas itself an has a
unreasonable Counsel professional judgment. only or rea- investigations make reasonable to make a duty sonable decision which makes particular investigations and the decision not unnecessary; reasonableness investigate is assessed measure of def- applying heavy v. (Strickland Washington erence counsel’s judgment. 689, 694, 2d 104 S. 466 U.S. 80 L. Ed. deference, 2065.)
Ct. such find that Giving we Chung counsel’s decisions Dr. were not unrea- regarding sonable.
Even decision Dr. assuming regarding counsel’s cannot Chung agree we with defend- unprofessional, ant there is a of a different probability reasonable better, different, outcome and a de- had counsel made a above, already discussing cision. We have described failure Dr. Chung’s to disclose where- prosecutor’s abouts, that Dr. testimony we believe Chung’s why the jury. would have effect on any appreciable For the we conclude that defense counsel’s same reasons call Dr. did not Chung deprive decision not to fair trial. assistance Finally, as to other claims ineffective he hearing which defendant raised at but which *29 here, to in his brief we find that defendant failed renew from either a has also failed to demonstrate departure that or probability standards a reasonable professional outcome changed would have the different decisions below, to trial. trial noted the extent As the court to a witness which an should attempt impeach attorney which is often a matter of fine tactical very judgment, court. deference great by reviewing should be given record, that defense counsel’s de- We cannot on this say, of the witnesses use by cision to impeach police De- unprofessional. claim in the police report false would jury fense well have believed may counsel had “cleared really have that defendant’s arrest believed
159 up” 30 crimes. counsel’s prior Similarly, defense decision not to cross-examine Theresa Woods about defendant’s tooth, missing speech and moustache impediment, may have been might motivated fear that Theresa Woods by state details, that she did not remember these or by belief the details to were too minor cast a signifi- cant her upon event, doubt In it cannot credibility. any said, be to a reasonable use of this probability, impeachment evidence would have the outcome changed of the trial.
Prosecutorial Comments in Summation Defendant also claims that different com- several ments made prosecutors closing arguments were so prejudicial to defendant of a fair deprive trial.
In the first set remarks, of challenged the prosecu- tors argued jurors “a enjoyed unique opportu- *** nity to do about something crime.” Whereas in daily life “We listen to it on news, in the ***. newspaper hears about crime. Everybody Nobody does anything about it. You have a unique opportunity do actually something crime your about on streets.” Embellishing upon theme, concluded, the prosecutor “You are the only ones sit man, bomb, between this this ticking and that door.” remarks this series were apparently intended persuade jurors to convict by convicting because
they would both crime in prevent and further general, crime such, this defendant. As were It is they proper. entirely proper prosecutor upon dwell the evil results of crime and to urge fearless administration (E.g., law. v. Owens People (1984), Ill. 2d 105-06; v. 360; Jackson Ill. 2d People (1981), People v. Wright Ill. 2d More 500-01.) over, this has court held re- previously nonprejudicial
160 the com nearly marks which were identical to remarks here, For in of harsh. plained equally example, v. People Benedik 310-11, 56 Ill. 2d the (1974), pros “ with you ecutor stated that he wanted to ‘leave only this, violence, a from today if this is a crime of if week or a be your month from seated at break today you may reading fast be the may newspapers table and you what, head you shaking your be to may saying yourself, isn’t done about negative, something being the why ” v. Owens People In violence society today?’ prosecutor 102 Ill. 2d stated (1984), “ modern America commentary peo a sad on ‘[i]t’s in their homes ple prisoners all too often become they to walk streets because night. They are afraid to Kallai would happened George fear that what ” exactly in People Ill. at 105.) Finally, to them.’ 2d happen (102 v. Wright rhe 497, 500, 2d (1963), prosecutor Ill. let murder if were to going asked torically jury they else. Un ers could kill someone they walk streets so comments in this der these precedents, prosecutorial to as deprive case cannot considered so prejudicial be fair trial. defendant a so
A
claims was
preju
second remark
the prosecu
him of a fair trial was
dicial as to deprive
confused
to
“Don’t be
jury:
tor’s admonition
to this comment
objection
An
defense wishes
to be.”
you
er
correctly,
is
argues,
Defendant
was sustained.
at
defense
counsel of
ror
accuse
prosecutor
v.
People
Weathers
confusion
(see
create
tempting
defense
114, 120),
fabricating
2d
or
Ill.
(1975),
Emerson
(see People v.
487, 498-99).
97 Ill. 2d
objection
an
However,
sustaining
trial court’s act
trial court’s
comment,
with the
together
taken
such
it should disregard
jury
admonition to
general
an objec
the court has sustained
to which
any comments
aby
caused
tion,
any prejudice
to alleviate
serve
may
*31
comment.
v.
particular objectionable
(See
Clark
People
52 Ill.
(1972),
374, 390.)
2d
This is
true
particularly
where,
here,
the comment
to was
objected
relatively
innocuous. In both
Emerson,
Weathers and
the two cases
defendant,
cited
remarks
challenged
were far
more
Weathers,
In
prejudicial.
accused
prosecutor
the defense
of
and of
attorneys
lying
to cre
attempting
“
ate a
‘confusion, indecision,
reasonable doubt by
and
”
misrepresentation.’
(Weathers, 62 Ill. 2d at
In
120.)
Emerson,
the prosecutor
that the defense at
speculated
knew that
had
torneys
to “make
they
something up,”
and that
therefore
they
concocted a
attack on
spurious
of the chief
credibility
witness for the prosecution.
(Emerson,
Defendant also
he
argues that
was prejudiced
prosecutor’s statement
the standard of reasonable
doubt is the “same standard that’s been
in
used
room,
court
in all
the court
rooms in this country,
throughout
the county,
State,
throughout
throughout
the country, through our entire
It’s
history.
nothing new.
There is nothing different about that
standard
proof.
That standard of proof does not require perfection.” The
statement
quoted
about the
standard
reasonable doubt
is
identical to
nearly
the statements held
in Peo
proper
v.
ple
Collins
Finally, argues was prejudiced by the prosecutor’s comment tests were no paraffin longer considered a reliable means of determining com- fired a gun. prosecutor’s
whether a person argument to defendant’s ments were response test administered a paraffin should have police defendant, testimony based fairly upon were are no tests paraffin an witness who stated expert can both they yield reliable because considered longer Therefore, results. and falsely negative falsely positive merit. lacks defendant’s argument THE SENTENCE di- on his sentence be may Defendant’s attack death In the first defendant makes a part vided into two parts. error to the court’s consid- relating of claims of number Green in that defendant killed Gary eration of evidence *32 at- launches a facial In the second defendant part, 1969. death of the Illinois validity penalty tack the against defects. constitutional statute, several different alleging in turn. arguments of defendant’s part We consider each Killing The 1969 that the first claims killing, As to the 1969 evidence introducing from State should have been barred in of delay prose- on the killing grounds about the 1969 collateral res judicata, cution, jeopardy, double these claims that the In response, prosecution estoppel. failure to defendant’s by have been waived arguments we motions. Because in his include them any post-trial on must be vacated defendant’s sentence believe that argu- of these not consider any other we need grounds, have been waived. ments, they or whether kill the 1969 that evidence of next claims Defendant neither rel it was excluded because should have been ing of our statute reliable, in contravention evant nor 1(e); 1983, ch. par. Ill. Rev. Stat. case law (see 9— has The State v. Perez 86). 108 Ill. 2d People we waived. Because claim has been that argued 163 excluded, the 1969 should have been agree killing vacate murder sentence. we now defendant’s Defendant first and we trial agree, argues, “murder,” considering killing court erred the 1969 in has view of fact that defendant never particularly crime, of that and has never certainly been convicted Thus, been reasonable doubt. proved guilty beyond erred, minimum, court in attributing trial at a far than killing greater weight it could de- possibly And while we normally presume serve. sentencing evidence, judge considers admissible we cannot only say court here excluded the from killing con- sideration, its given own heavy emphasis upon killing during its of the evidence. summary
Moreover, defendant and we argues, agree, trial court erred evidence by excluding prosecu- tion’s reasons moving to nol-pros prior murder charge against defendant. Given the broad range of evi- dence considered traditionally probative sentencing, error surely to conclude that the 1972 prosecutor's reasons for that defendant not kill believing did Gary Green stated, were irrelevant. The prosecutor on record, that the victim’s mother and brother in- dependently investigated crime and had discovered that defendant was not the killer. The state- prosecutor’s ments were buttressed the 1972 the vic- testimony Moreover, brother. tim’s the judge at the nolle prosequi hearing went out of his to commend the way prosecu- *33 tor’s decision to the facts, case. Given these nol-pros the trial court’s decision to consider the 1969 “the killing of Mr. Green,” murder that evidence stating “the is posi- tive and credible that the defendant kill Mr. in did Green 1969,” and at time the same to refuse consider why case this defendant had been previous against was in error. dropped,
164
We hold that the evidence of the kill- therefore irrelevant, have excluded as both ing should been be- cause of the 1972 decision to the case based on nol-pros not crime, evidence that defendant had committed the and because trial court’s reliance the 1969 kill- upon as an factor was We further ing aggravating misplaced. find that the evidence was concerning killing unreliable. at a penalty hearing admitted death evidence (Ill.
must relevant. Rev. Stat. be both reliable and People v. Perez 108 Ill. 2d ch. 1(e); par. 9— In case the admitted was not reliable. 86.) this evidence This a As the killing. factor was aggravating 15-year-old evidence, trial in court admitted its summary witnesses, Rochester prosecution of one of the testimony Green, inconsistent impeached his severely by prior was he attempted at the 1972 hearing. While testimony that he had inconsistency stating simply explain by had killed in 1972 “Rat” “heard” named person brother, testimony his this contradicts his explanation he when his present sentencing hearing As Mc testimony Lynn was killed. brother Donald, his statement is both impeached by rifle, Green with a a statement shot Gary his evidence, and by the ballistics by contradicted flatly con Therefore, the evidence a rival membership gang. and should killing the 1969 was unreliable cerning the trial judge. have been considered a sen- presumption we normally indulge While and admissible evi- considers relevant tencing court only case dence, is rebutted that presumption summary, That court’s of the evidence. summary own the court’s characterization and particularly “murder,” gave the court makes clear killing decision. in its great weight of that killing evidence of defend- vacation To and necessitates do so was error
165 ant’s death sentence and remand for a new sentencing at which evidence of the hearing will not killing be admitted. We turn now to defendant’s for the arguments of the unconstitutionality death act. penalty Constitutional to the Death Act Challenges Penalty The second of defendant’s his part attack on sentence consists of various that the death arguments Illinois pen statute alty is unconstitutional. first argues Defendant the statute is unconstitutional because the Code of Criminal 1983, 38, Procedure of 1963 Stat. (Ill. Rev. ch. pars. 26) from improperly exempts subjec 104— 104— tion to the death penalty those who need assist special ance to stand trial. In our case, initial in this opinion we held that defendant waived this claim to raise by failing in of his any motions. Defendant post-trial subse filed a quently petition for in which he cites rehearing People v. Bryant (1989), 128 Ill. 2d for authority proposition his claim should not have been deemed waived. We need not address the question raised in defendant’s however, petition rehearing, because even if we assume deciding without that defendant’s claim has not waived, been defendant would not prevail on the merits of his claim. This court has re previously jected the argument that the statute is unconstitutional in exempting persons need of special assistance from the death (see v. penalty People (1988), 121 Ill. Ashford 55, 90; 2d v. Perez People (1985), 108 Ill. 2d 94-95), and we decline to reconsider these decisions. prior
Defendant next court argues should recon- sider its holdings those cases in which it has upheld constitutionality Illinois death statute penalty against claims the statute eighth- violates the amendment cruel and unusual prohibition against punish- ment because it does not contain adequate safeguards prevent arbitrary capricious death sen- imposition has re
tences. this court acknowledges Defendant claims of based jected unconstitutionality upon: overly v. (People Carey ex rel. prosecutorial broad discretion Cousins 77 Ill. (1979), 531), inadequate comparative 2d v. Brownell (People review Ill. proportionality *35 findings 2d of written the sentencer 508), absence v. (People Gaines 342), 88 Ill. 2d (1981), inadequate pre (People v. Davies trial of factors aggravating notice 95 of a to find (1983), 1), requirement Ill. 2d absence v. (People Free sentence that death is the appropriate in alleg 94 the statute 378), Ill. 2d (1983), language of proof the sentencer burden edly allowing place (People v. Del Vecchio 105 Ill. (1985), upon defendant 2d for reconsideration 414). ground The defendant’s sole of States that a the United appears single justice to be concurs, a second has Court, justice with whom Supreme certiorari in our of a number of dissented from denials in cases, these dissents the Illinois and has stated v. Albanese Illinois (See statute is unconstitutional. 1044, 335, 335-36, L. Ed. 1045, 85 2d (1985), 471 U.S. (Marshall, J., from de- 2061, dissenting 105 S. 2062 Ct. v. Illinois certiorari); Gacy 470 U.S. (1985), of nial 799, 799, 1410, S. Ct. 1037, 1038, L. Ed. 105 84 2d of certio- J., from denial (Marshall, dissenting 1410-11 v. rari); Eddmonds Illinois 894, 895-98, 469 U.S. (1984), 207, 271, (Mar- S. Ct. 271-74 207-10, 83 L. Ed. 2d Jones v. certiorari); J., shall, dissenting from denial Illinois (1983), 920-21, 264, 78 L. Ed. 2d 920, 464 U.S. J., 287, from 264-65, dissenting 104 S. Ct. 288 (Marshall, certiorari).) in two joined While opinions denial value, some have may persuasive Court Supreme justices recon- more, ground not, adequate are without they Therefore, decline to we binding precedent. sideration of reconsider our prior holdings. us to urges which upon final ground is that unconstitutional
hold the statute penalty death the statutory factors used to aggravating persons qualify convicted of murder for the death under the Illi penalty 1981, 38, nois death act (Ill. Rev. Stat. ch. penalty pars. 1(a), factors, are the same (b)) with one aggravating 9— exception, as those to qualify persons used convicted of murder for sentences of life the Illi under imprisonment nois Unified Code of (Ill. 1981, Corrections Rev. Stat. ch. par. Therefore, defendant ar 1(a)(1)). 1005—8— gues, the statutory factors do not aggravating ade quately circumscribe the class for the persons eligible death thus penalty and do not death prevent sentences from being an imposed unconstitutionally arbitrary and capricious However, manner. while defendant’s ap peal pending, court this same rejected argu ment in People v. Shum 117 Ill. 2d (1987), 317, 373-74, v. People Lego Ill. 352-53, 2d People v. Whitehead (1987), 116 Ill. 2d 463-65. For rea cases, sons stated those we similarly reject defend ant’s here. argument
areWe
aware of the
the
of
United States Dis
opinion
trict Court for the
Illinois,
Central District of
filed April
29, 1989, in the case of the United States ex rel. Silagy
v.
No.
Peters,
88—2390. In that case the court held the
Illinois death penalty
(Ill.
statute
Rev.
ch.
1979,
38,
Stat.
par.
1)
In
unconstitutional.
on Federal consti
passing
9—
tutional questions, State courts and lower Federal courts
have the same
and
the same
responsibility
occupy
posi
tion. Until the
Supreme Court
United States has
spoken, State courts
not
are
from
precluded
exercising
their own
on
judgments
Federal constitutional questions.
Because lower Federal courts exercise no appellate juris
courts,
diction over State
decisions of lower Federal
courts are not conclusive on
courts,
State
insofar
except
as the decision of the lower Federal court
become
may
the
law of
case. United
ex rel.
States
Lawrence v.
1072;
Woods
Cir.
(7th
1979), 432 F.2d
see also City of
v.
People
Chicago
v. Groffman
112;
68 Ill. 2d
(1977),
Stransberry
THE HEARING of the matters raised originally disposed Having to the to our remand of case prior re- court, turn now to contentions trial we defendant’s challenges use on the State’s of garding peremptory the trial Defendant argues black venirepersons. the Batson at should be reversed finding hearing court’s trial erred in (1) because court requiring the Batson trial at testify prosecutor original cross-examination, hearing subject under oath the State’s rebutted (2) finding explanations prima facie defendant’s case. in three different
The case was selected jury four each. The first was sworn jurors panel of panels 23, on The second and selected 1984. April when was and sworn on third were chosen each panels separately as was sworn jury 1984. On April April had Before the been began. jury a whole and trial whole, three panels after each sworn but sworn, chosen and defendant moved separately been on the State grounds that a mistrial be declared ex- systematically challenges exercised its peremptory to the jury. only reply clude blacks from the State’s the State statement the prosecutor’s motion was would: *** a number of that there “stand on record [sic] venirepersons excluded
things on a number black [the The State unacceptable. made them by the State] any race or nation- to exclude attempt made no concerted dire." voir ality during the course *37 motion. The trial then denied defendant’s court to this trial, directly After appealed inter alia his convictions should be court, arguing reversed the State used chal- because its peremptory from lenges systematically serving exclude blacks on In jury. light Court’s decisions Supreme v. 79, 69, Batson 476 U.S. 90 L. Ed. 2d Kentucky 1712, 106 S. Ct. v. Kentucky (1987), Griffith U.S. 93 L. Ed. 2d 107 S. Ct. this court issued a to the order the case supervisory remanding trial court for a on defendant’s claim that hearing State exercised its chal- unconstitutionally peremptory on lenges black venirepersons. order directed the trial court to allow defendant to evidence in present sup- of his claim. port The order further stated that if the trial court found that defendant established a prima case of discrimination, the trial court should allow facie the State to present evidence that the black venireper- sons were excluded for nonracial reasons. The order fi- nally instructed that at the conclusion of the hearing, the trial court “shall make of fact appropriate findings conclusions of law and file those findings and conclusions with the clerk of this order, court within 63 of this days together with the record of the proceedings.”
At the hearing was that 2 established of the 12 ju- rors were black. It was also the State undisputed had exercised 15 of its 20 on peremptory challenges blacks. The record was not clear as to the race of two other members of the venire who had been peremptorily challenged State, the trial but court concluded were black. they Based its upon finding State exercised out of its 20 peremptory challenges on blacks, the trial court concluded defendant estab- lished a prima case of discrimination. facie rebuttal,
In the State offered the of one of testimony prosecutors case, who testified that the State exercised each of its for race-neu- peremptory challenges tral reasons. The prosecutor that he explained generally looked for jurors who had ties to their commu- strong
170 In he who homeown- nity. sought jurors were particular, ers and at job had been the same for number employed of for had years. jurors He also looked who families and had in the ex- whose families roots He then community. for 17 plained his reasons each of the specific excluding black After venirepersons. argument from both hearing defendant, the the stated its State trial court orally of fact the State’s for findings regarding explanations the The 16 of court failed to excluding venirepersons. make a to the finding regard seventeenth specific The venireperson. stating court concluded by found that the State’s based challenges were peremptory reasons, upon thereby rebutting neutral defendant’s prima the sub- transcript case. The of was hearing facie filed with the clerk this court. sequently re- the trial court should have argues Defendant Batson testify hearing to quired prosecutor under to cross-examination. Defendant subject oath and found further trial court should have claims prima that the rebutted defendant’s State’s explanations State, other The on the case of discrimination. facie Batson his hand, argu- waived asserts to until ment raise it after been by failing jury sworn; record black venire- failing preserve State; "raise the failing stricken persons Batson in his new trial. The State issue motions is- also that even if defendant did not waive the argues Batson sue, in the hear- the trial court’s determinations waiver We first address the State’s ing should be upheld. arguments. object failure to
The that defendants argues State last after until challenges peremptory State’s The argu- a waiver. State’s sworn constituted panel that chal- is rule ment the well-established upon based must be be- brought of a composition to the lenges jury v. Evans fore People (See (1988), is sworn. jury 61-62; Ill. v. 88 Ill. 2d People (1981), 2d Gaines However, it is true that 359.) equally principle waiver to the State well as to the defendant. applies 2d People v. 104 Ill. 407. O’Neal case, In the State not raise the issue did timeliness of to the use of defendant’s State’s objection challenges when defendant filed its peremptory initially mistrial, for a instead pretrial challenged motion but motion its factual on merits. State also failed solely to raise the in either initial with this issue its briefs *39 hearing court or at the Batson conducted the trial by court It on remand. was not its brief, until supplemental filed with this court after Batson had been hearing conducted, that the State first raised the issue. We therefore that conclude the State has its argu waived ment that defendant’s to the exercise objection State’s of v. challenges (See was Lee peremptory untimely. State (Tex. 747 1988), (State 58 waived its ob App. S.W.2d jection on to untimeliness defendant’s Batson appeal motion to so failing trial); see by object People also v. 173 Colley Ill. 3d (1988), App. 806 is (State from untimeliness of estopped arguing defendant’s Bat- son motion where failed raise to issue at trial).) We also find that the State has waived its argument pertain ing to defendant’s failure to include the issue of the ju ry’s in its composition post-trial motion for a new trial since the State to un similarly failed raise this argument til its brief this court. supplemental with did,
The however, State in its initial brief with raise this court to argument that defendant failed pre- serve an race record as to the of the adequate venireper- sons excluded by State. This is argument upon based that a defendant not principle may challenge State’s challenge being motivated peremptory racially unless there is evidence in the record that establishes race of the excluded v. Evans 125 juror. (People Evans,
Ill. 2d In had 62.) parties stipulated the State had been black. venirepersons by five stricken in Evans claimed on defendant also appeal sixth had court held that excluded been black. This juror defendant’s of the sixth juror the exclusion challenge was been no evidence in the waived because there had (Evans, race. record that Ill. juror’s established However, no of a 62.) 2d at there was waiver because failure to make a record in Evans with respect to the had were black. parties agreed venirepersons in this indicates Our review record case at the Batson hear and the agreed both defendant State that 15 the 20 stricken the State ing venirepersons Evans, Thus, were as was the case black. challenge his the State’s exclu right
has waived however, sion of There was jurors. dispute, these excluded the race two other concerning venirepersons in the record established Although nothing the State. court at the race of these trial venirepersons, Batson defendant’s upon representations, based hearing, In decision light been of our found that black. they Batson in Evans decided after (which, note, we we conclude conducted), this case had hearing been beyond for the court have gone it was error trial *40 disputed record the race two to determine should only the trial court venirepersons. Accordingly, of 15 venire the State’s exclusion have considered in determin were black parties agreed that persons prima case a of whether established ing defendant facie Evans, Ill. 2d at 62. See 125 discrimination. in consider court erred conclusion that the trial
Our in defend assessing the two additional ing venirepersons us to ant’s prima facie case, however, require does not that estab court’s finding reverse the trial v. McDonald People prima (1988), case. In lished facie a prima 196, Ill. 2d this court 182, explained 125
173 case be established where a may has ex prosecutor facie ercised “a of ‘pattern’ strikes against black” veniremen Batson, 97, 476 U.S. at L. (quoting 88, 90 Ed. 2d at 106 S. Ct. at or 1723), where a has prosecutor exercised “his of peremptory challenges against group veniremen be ing otherwise ‘as as the heterogeneous community whole,’ race as sharing their common only characteris tic” (quoting v. Wheeler People 258, Cal. 3d 764, 148 P.2d Cal. Rptr. 905). McDonald,
In this court an rejected argument the trial court should have only considered the eight black who venirepersons had testified at the Batson case, in that hearing rather all than 16 blacks who had been stricken by State, assessing defendant’s prima case. (McDonald, 125 Ill. 2d at This 197-98.) facie court state, however, went on to that: assuming
“Even
that our review were limited to the
veniremen who actually testified at the
hearing,
Batson
we would still be compelled to
find
defendants estab
a prima
lished
case
discrimination. Our review of
facie
the record indicates
heterogeneity
stricken veniremen
change by
does not
merely reducing
their number by eight. Again, the pattern of strikes the
exercised,
prosecutor
against
these eight veniremen,
along with the
they
fact
share race as their only
characteristic,
common
compels us to conclude that
prima
defendants established a
case of discrimina
facie
McDonald,
tion.”
record demonstrates a pattern strikes State against 15 venirepersons whose common only character- istic was that were black. they we Accordingly, agree
174 with the trial court that defendant prima established case of in its use of discrimination State pe- facie turn now defendant’s challenges. argu- We to remptory ments. in
Defendant first argues prosecutor case, who as the State’s at the testified witness Batson should under hearing, required testify have been oath to cross-examination. re subject recently be We same in People Young (1989), v. 128 jected argument 1, 24-26, Ill. 2d a case decided while this appeal and, for we simi Young, the reasons stated pending, it here. larly reject trial
Defendant’s second
court
argument
is
erred in
the State rebutted defendant’s
finding
Batson,
case of discrimination.
once a
prima
Under
facie
established,
case of discrimination has been
prima facie
with a
the State has the
forward
neu
coming
burden
venireperson
tral
each black
explanation
excluding
for
to be
which is “related to
case
tried.”
particular
98,
L.
S.
476
90
Ed. 2d at
106
Ct.
(Batson,
U.S. at
need not
explanations
at
the State’s
rise
1723.) Although
cause, a mere
challenge
for
as
to the level justifying
or
sertion that
acted in
faith
with
good
prosecutor
will
suffice.
476
(Batson,
out a
motive
discriminatory
97-98,
2d at
at 1723.)
U.S. at
90 L. Ed.
106 S. Ct.
Furthermore,
the State cannot meet its burden
stat
assumption
were based
an
ing
challenges
upon
toward
would be
venirepersons
sympathetic
Batson, 476 U.S.
defendant because of their shared race.
88, 106
L. Ed.
S. Ct.
2d at
at 1723.
its reasons
the State has come forward with
Once
then
the trial court must
de-
striking
venirepersons,
termine whether the
are sufficient
rebut
explanations
so,
To
trial court
case.
do
prima
defendant’s
facie
evaluate
make “a
attempt
must
sincere
reasoned
of the circum-
light
the prosecutor’s
explanation
stances of the case.”
v. Hall
3d
(People
Cal.
*42
161, 167,
854, 858,
71,
672
197 Cal.
Be
P.2d
Rptr.
75.)
fact,
cause this determination is a matter of
turning
on
of
the trial court’s find
largely
questions
credibility,
must
ings
be afforded
deference
476
great
(Batson,
U.S.
at
n.21,
n.21,
98
L. Ed.
at 89
2d
noteWe the trial court initially found that four venirepersons were stricken from the because jury they had relatives who had in been defendants criminal cases. A fifth member venire was excluded because she was “sickly and disabled” and therefore would not be able to attention pay the trial. A throughout sixth venireperson was excluded because her in- job involved terpreting court and procedures and the policies, prose- cutor thought she would try do the same for the other jurors. two other Finally, were venirepersons excluded from the because jury they were and single unemployed and lacked ties to the One was community. a 19-year-old man lived his who with and the other 47- parents, was a woman who in year-old lived an apartment with her two sons, adult one whom was also Defend- unemployed. ant not our does argue, review the record does indicate, not of these any were explanations pretex- tual or not the evidence. supported by ninth
The member of the venire excused from serving on the jury was described a prosecutor being “meek and who juror did answer sleepy” questions felt also uncom- prosecutor manner. forthright and we her demeanor. Defendant argues,
fortable with which focus agree, upon venireper- explanations scruti- closely or demeanor must be body language son’s easily and can be used subjective nized because are they for on as a pretext excluding persons a prosecutor v. Charron 193 Cal. (See People of race. basis However, 660, 666-67.) 3d 238 Cal. Rptr. App. aware of court in this case stated that trial demeanor-based by subjective, expla- problems posed result, As excluding venirepersons. nations for scrutinized the State’s explanations court closely here to us that trial record indicates nothing court’s was erroneous. finding from the
A tenth was stricken venireperson jury Park, lived in Hyde The first was that she three reasons. residents, the prosecu- in Chicago whose neighborhood ideas than felt, tor more new open were scholarly that these prosecutor The believed Chicagoans. other jury duty unsuitable for traits made Park residents Hyde findings their likely be less to base because would they Chicago- in the case than other of on the evidence fact her hus- excused because The was also venireperson ans. health field and because in the mental band worked being her struck the job prosecutor she described way pretentious. based upon argues explanation
Defendant was insufficient Park residence Hyde the venireperson’s State v. Citing of proof. to meet the State’s burden 350, So. 2d defendant 1987), 503 (Fla. App. Slappy con- assumptions rely upon that the State cannot claims of a broad group possessed by traits cerning allegedly there is some (1) show that can unless State persons (2) assumptions those of truth supporting element the venireperson are possessed traits particular those the State argues Thus, defendant excluded. being must show Park residents Hyde do tend to actually be scholarly, to new ideas and not open to base likely their and that Alexander on findings evidence, fact shared these traits. We disagree. Court in Batson
The
Supreme
instructed that the pro
cedure to be followed in
on
issue of a
hearing
pros
ecutor’s
use of
discriminatory
peremptory
challenges
should
similar
be
to the one
utilized
Federal Title VII
(See Batson,
employment discrimination
cases.
476 U.S.
at 94-98 nn.18-21, 90 L. Ed.
nn.18-21,
2d at 86-89
106 S.
Ct. at 1721-24 nn.18-21
Title
(citing
VII
Under
cases).)
Title VII, once the plaintiff has made out a prima facie
case
discrimination,
the burden
shifts
the defendant
to articulate a legitimate,
reason for
nondiscriminatory
his action. (Texas Department
v.
Community
Affairs
Burdine (1981),
The two elements that defendant the argues State is required to show with regard peremptory challenges based on a in venireperson’s membership group (1) —
that the traits group (2) the undesirable possesses that the also those traits —are venireperson possesses that the trial court con- merely important should factors in the ar- evaluating sider legitimacy explanation if the ex- ticulated the State. For State example, from the jury cluded an accountant because solely State’s belief that accountants tend to be lib- politically individuals, eral and was demon- and sympathetic was no basis for this about assumption strated there accountants, then the trial court conclude that the might was if ac- pretextual. Similarly, State’s explanation excused, in the were and the ev- countant above scenario ac- during dire demonstrated clearly idence voir not did share traits countant-venireperson individuals, toward the trial liberalism sympathy explanation court find that the State’s was again might pretextual. stated case, the trial court who judge,
In present Park neighborhood, that he was familiar with Hyde for num- law school and worked there having attended for ber there was some basis concluded years, residents and about Park assumptions Hyde State’s striking Alexan- so the State’s accepted explanation not agree, we do find Although might der. we evidence. contrary was court’s conclusion from the jury The eleventh excluded person who previ- he was a steelworker stricken because had done work graduate a schoolteacher and been ously from teacher to steel- job change This education. and something as strange worker struck the prosecutor venireperson’s as to what which raised questions Furthermore, be. venire- might or feelings prejudices mar- music and was college had been a person major he explained The prosecutor ried to a schoolteacher. of school- and spouses schoolteachers excused generally in- toward tend to be they sympathetic teachers because *45 179 The dividuals and them the benefit of doubt. give prosecutor also felt that teachers tend to go beyond law them trial upon restrictions placed judges when they jurors. serve as also stated prosecutor that he excluded tend musicians because generally they to be willing creative and to move strictures beyond of the law.
Defendant that the for argues State’s reasons exclud- ing the eleventh should for sev- venireperson rejected be eral First, reasons. defendant asserts the venireper- son all met of the general criteria that the State itself said it used for He was a selecting jurors. 53-year-old married man with seven children. He owned the home that he had lived in 15 and he years worked at same Thus, for the job past according to years. defendant, the venireperson clearly had ties to his strong community. Second, defendant asserts that the State’s concern about teachers on serving is jury without merit because the State a allowed white teacher to serve
on the in jury. defendant, an Finally, we have argument rejected, already claims that the State was required (cid:127) show that teachers and musicians this general, and venireperson particular, the traits were possess which the basis for the peremptory challenge.
In People v. Young Ill. 2d ob we served that if a prosecutor rejected minority venireper son for characteristics, certain re possessing but did not ject a white those same venireperson sharing characteristics, “it does not follow that in itself shows that were prosecutor’s explanations pretex tual.” explained that: We
“Though part explanations may the prosecutor’s jurors been applicable have white who were not chal- jurors have, lenged, may white in some other respect, exhibited a trait which the could prosecutor reasonably him her a ju
have make or desirable as believed would (Young, 23-24.) ror.” 128 Ill. 2d at is true as a minor Likewise, Though converse well. all of the traits otherwise ity venireperson may possess for in he which State is looking juror, may possess *46 the an trait makes him undesirable. On additional which a hand, conclusive, other not evidence that although it is char stricken the same possessed minority venireperson a on whom the State nonminority juror acteristics as cer chose a should challenge exercise peremptory court in evaluat weight by be the trial tainly given great v. McDonald People explanations. the State’s See ing 182,199-200. 2d (1988), 125 Ill. case,
In there is little merit to defend- the present that, ant’s since the State allowed a white contention the the State’s was explanation pre- teacher onto jury, the fact that by conclusion is based upon textual. Our voir the white teacher was questioned during time the dire, had all its chal- exercised of peremptory State no as to result, the State choice lenges. As a chal- exercise a peremptory whether or not should inference discrimination arises no of lenge. Consequently, a on in this fact that teacher served case from the white the jury. been
The court that there have may trial agreed teacher, a was a about who suspicious person something education, even done work graduate and who had steel- job to take a as a leaving teaching profession the trial court be- described worker, occupation by an say lesser We cannot status.” ing conceivably “job court is against of fact trial finding by this of the manifest evidence. weight was the State The excluded twelfth venireperson At on 23. examined April to last venireperson second se- four was jurors first day, panel end who had members of venire lected. All of the other of this exception been with questioned day, were excused. The next day, twelfth venireperson, were examined before further any more venirepersons explained were allowed. challenges prosecution the twelfth this time he could recall little about recollec- hand, he had a fresh On other venireperson. questioned day. tion of the 11 that had been jurors therefore lack of in- Due to this lack of recollection and the pros- formation the twelfth concerning venireperson, ecutor The trial court challenge. exercised peremptory prima found that rebutted defendant’s explanation case. facie Batson, ex- State’s
Citing
argues
prima
insufficient
planation
to rebut defendant’s
“
case because it was not
‘clear and reasonably spe-
facie
” (Batson,
n.20,
cific.’
Defendant misconstrues
the State’s
explanation.
is
true
the
While it
that
State cannot rebut a
certainly
prima
that it
case of discrimination
does
by stating
facie
not
it
challenges (see
know
exercised its
why
peremptory
Batson,
“main reason” he exercised a peremptory married to a “was not because he was venireperson] [the had a Rather, teacher.” it was because venireperson a friend who also be who politician happened about That was concerned lawyer. prosecutor politician, fact friend was a venireperson’s is demon- lawyer, fact that he was rather than the from the Batson hear- following colloquy strated ing: When asked about whether [the
“[PROSECUTOR]: he that he any knew venireperson] lawyers, responded Fred ***. the name of knew one. He was friend record seemed you Your indicated in the Honor *48 asked, council- city wasn’t he a know that individual and man, and— juror
THE in Actually, COURT: lived Evanston. I think the name ***. I know lawyer’s was don’t how got name Fred in the record. I there a recall was discussion
[PROSECUTOR]: about, you know, the lawyer that he mentioned and fact he a city councilman, was and there was some smil- ing of he you, between the two fact that was im- whatever, pressed recognized or or you knew that person that he had mentioned. about, thought
That left me with who is this He’s a I obviously political person Evanston. [friend]. I did not know him. didn’t if he a know was candidate or a politician that was in one no specific interested issue or issues; if he person was a that was a or pro-abortion ban- the-bomb or whatever. man,
I did not know this I did not know his politics. The contact between left venireperson] very up was [the in the air between and the venireperson who [the friend] words, is a friend or an associate. I he believe used both friend and associate. again, I a
So situation where I did know the of importance life, venireperson’s] [the friend] [the thought I best, best, and I it thought because lack knowledge, to exercise a peremptory challenge.” The court, trial in its fact, oral findings stated that the venireperson “related that his was friend [the friend] and I think that is justification a a using peremptory challenge; could, same reason Defense if a person said they had friend who was a state’s attor- ney.” trial court thus found that apparently State justified in its use of peremptory challenge because the had a friend venireperson who was a crimi- nal This reading defense of the court’s attorney. finding is underscored the fact court, defense during counsel’s at the re- closing argument Batson hearing, sponded to claim defendant’s the State’s explana- tion was his pretextual, by about friend- asking “[w]hat or association ship with Criminal Defense attorney?”
184 the fact that the We find the trial court’s reliance upon attorney friend a criminal defense son’s venireper have been improper. Batson, it the to “articulate”
Under
is
State’s burden
for its
“a ‘clear and
specific’ explanation”
reasonably
on
challenges
minority venirepersons.
use of peremptory
n.20,
at
venireper that this fact was articulated clearly specifically challenge. exercised peremptory reason that State either the record from voir also note that (We nothing of the with the hearing, exception dire or the Batson counsel, was ap- which trial court’s of defense question knowledge personal the trial court’s based parently upon a criminal de- that the friend was friend, indicated from the Batson Instead, as the colloquy fense attorney.) demonstrates, reasonably “clear and only hearing artic- challenge for the peremptory specific” explanation ulated the State friend regarding venireperson’s was the and that politician, fact the friend was a this fact somehow reflected po- upon venireperson’s result, litical As a for the trial beliefs. was improper court to have based its conclusion that the State rebut- prima ted defendant’s case the fact that upon facie Uviedo, venireperson with a See friendship lawyer. (In cases, F.2d at 1430 Title is beyond VII “[i]t a trial or a province reviewing court to determine— after the fact —that certain facts in the record might *50 have served as the an basis for employer’s [discrimina- tory act]”). we find that the court’s
Although
was errone
ruling
ous, we cannot at this
hold that
the State
point
used its
in a
peremptory challenges
man
racially discriminatory
ner. This is because there has not
been
of fact
finding
regarding
explanations which
State did indeed
for
proffer
excluding the thirteenth member of the
However,
venire.
this court
is in no position to make
such a
since such
finding
findings
will turn
“largely
on
evaluation of credibility” (Batson,
n.21,
The excluded, fourteenth was venireperson according to the because “she rela- prosecutor’s testimony, lived close to the area where this inci- tively [within miles] 3V2 dent had occurred.” The further testified prosecutor that:
“it of a lack of was because lack of information and knowledge a lack of information about particular, [in good I did not feel I had a venireperson’s husband] I venireperson]. on did not find her to be handle [the going automatically kind that I was to exercise juror of a any challenge, but was because way, peremptory other that I I jurors my jury wanted on believe [she] was excused.”
The trial court found the State rebutted defendant’s prima case because court concluded facie mile lived within one of where defendant venireperson court, lived. “in this dis- case, to the trial According [the resi- tance defendant’s between venireperson’s mile, dences would have to have within at least a been] hold that challenge.” order to use a We peremptory this was erroneous. finding case,
In the venire- prosecutor testified that crime; men- near the scene of the he never person lived tioned that she near defendant. Nor the fact lived the case Attorney this fact arguing raised State’s reference Batson for the hearing. only State at during statements general defendant’s address were Attorney’s closing arguments State’s opening two in the case: defend- addresses were important *51 crime. did ant’s and the scene of the The State address not, in however, venireperson particular specify that her ad- lived near defendant. The court’s finding address was dress was within one mile of defendant’s Instead, have not the record. been may based upon Thus, based the court’s upon personal knowledge. venireperson State the reason the never articulated defendant. the fact that she lived near was excluded was trial not considered court should have Accordingly, for its pe- fact the State's assessing explanation this in must remand to We therefore challenge. remptory issue of and conclusions trial court to new fact findings of the fourteenth regarding venireperson. law
The final was the State who excluded venireperson The prosecutor had a husband who was also unemployed. had son testified explained venireperson’s court as a victim of an and the armed robbery venireper- dire during voir son was not asked result what the of result, the case As a had been. did not prosecutor or know of the case whether the venire- disposition person had been satisfied with the treatment her son had received. concluded his prosecutor testimony about the he venireperson by stating that excluded her because “I I a great did feel amount of knowl- edge regarding Her ties to the seemed community [her]. tenuous, to be and in to the other I comparison jurors was at that I considering time, did exercise a peremp- tory challenge.”
The trial court failed to make a finding re- specific garding State’s of exclusion this final venireperson. In the order for Bat- supervisory remanding this case son hearing, court instructed the trial court “to make fact appropriate findings of and conclusions of law.” One of the trial court to purposes requiring make fact is findings provide “to courts appellate with a clear of the basis of the trial understanding Airlines, court’s decision” (Bartsh v. Northwest Inc. Cir. (7th 1987), 831 F.2d 1304) so as to allow for v. (Gupta East Texas “meaningful” appellate review University (5th State Cir. 654 F.2d 1981), 415).
This court People v. Mack (1989), 128 held recently Ill. 2d 245-46, that the trial court’s explicit finding in that case that Batson the facts in the hearing were not in and that all dispute, State’s explanations for exercising were peremptory challenges legitimate, sufficiently specific appellate allow for adequate however, review. In the trial present case, court *52 188 in the facts were not dis- finding
made no explicit Mack, the trial Moreover, unlike in where court pute. all were explanations legiti- found that State’s mate, trial court here was silent on question for venire- the State’s final excluding explanations here the trial court’s are person. Accordingly, findings provide us with an specific adequate sufficiently decision. We therefore re- basis to review court’s mand court to make fact specific findings trial of law for this final venireperson. and conclusions in of the State’s closing many explana We note are tions these last three excluding venirepersons for lacked certain infor based the fact State upon such should mation them. In general, explanations about can utilized as scrutinized since be they easily be closely v. (See People for discriminatory challenges. pretext Turner 711, 111-12, P.2d 42 Cal. 3d 726 Courts, evaluating such 656, 665-66.) 230 Cal. Rptr. whether State made should consider explanations, discovering the unknown information at any attempt Turner, 111-12, at Cal. at 726 P.2d (see 3d 665-66) requesting at for example, Cal. Rptr. by, voir dire (see be asked during supplemental questions explanation R. the State’s 234). Similarly, 107 Ill. 2d because they were challenged two of the venirepersons should jurors than other potential were less desirable met cri very both (1) also be scrutinized since closely poten the State itself stated looked teria which and with children tial were married jurors: both of years at for a number the same employed job been the State failed homeowner), (2) was a (and one jurors other potential what made characteristics explain explanation, In second assessing more attractive. the other who to ascertain attempt the trial court should considered were being were who venirepersons challenges compare its time State exercised their venire- characteristics with those excluded *53 persons. conclusion,
In therefore, with the trial court agree we discrim- defendant established a case of prima facie ination. also State defend- agree We the rebutted ant’s case for 12 of the 15 prima venireper- black facie reverse, however, sons We State. challenged trial court’s conclusion State rebutted defend- ant’s case State’s exclusion of prima regarding facie the three above. venirepersons juris- described We retain diction to and remand the case to the trial court issue court, and file clerk in with the of this new find- writing, of ings fact and conclusions of law State’s regarding the for explanations the three de- excluding venirepersons scribed above. trial court shall make its findings based the views in upon this and expressed opinion upon the evidence and were arguments that already presented at the hearing. Batson Neither State nor defendant shall be to further allowed or present argu- evidence any ment on this in the issue trial court below.
CONCLUSION This holds, therefore, opinion death defendant’s vacated, sentence is his convictions and nondeath sen- tences are vacated reinstate- conditionally subject ment, cause and the is remanded to the court of circuit Cook trial court to issue of County findings new fact and conclusions of law expla- State’s regarding excluding nations for black three de- venirepersons If, scribed in this opinion. after evi- reconsidering dence of in the trial light opinion, court finds that the State has failed rebut defendant’s prima facie case, a shall new trial be If not re- ordered. retrial is quired, convictions and nondeath sentences defendant’s will be and the court reinstated trial will be directed to on the murder sentencing hearing
conduct new convic- tion, in accordance with this opinion. vacated;
Death sentence convictions nondeath sentences conditionally and reinstatement; subject vacated remanded, cause with directions. RYAN, part dissenting concurring JUSTICE in part: herein, noted ma- exceptions with the
Generally, opinion job analyzing does a commendable jority the defendant on this resolving ap- the issues raised I and dissent opinion, concur those peal. parts error to have permitted from the only finding concerning shooting the introduction evidence *54 and of mitigation phase Green at the aggravation Gary and from that of hearing, part opin- the sentencing the Batson issue for further hearing ion which remands the State the use of by pe- as to three excused jurors challenges. remptory concerning of the kill
As to the introduction evidence 1969, to remember important of in is ing Green Gary phase second of was introduced evidence held hearing That was before the sentencing hearing. that hear a At of phase the court the first jury. without death eligible found the court ing, aggravat of the statutory on the presence based penalty, committed in the the murder had factor been ing 1983, 38, ch. (Ill. of armed Rev. Stat. robbery. course an of the sentencing At the second 1(b)(6).) phase par. 9— in in and was mitigation hearing, aggravation evidence which the of matters in aggravation troduced. One was hearing at the second phase State introduced opinion of Green. The killing majority the 1969 Gary have should been killing of this holds that the evidence nol-pros to of State’s decision excluded because and because the trial court’s reliance charge, upon 1969 killing as an factor was I aggravating do misplaced. not The agree. killing of Green was not Gary presented a establish second murder to the defendant for qualify the death (See Ill. Rev. Stat. ch. penalty. par. 1(b)(3).)It was in presented prove matter aggra 9— It was, therefore, vation. not necessary establish that the defendant had The Gary “murdered” Green. fact court, that the in in considering factors and aggravation referred to of Green is mitigation, the “murder” Gary The significant. court there used the word “murder” as with “kill.” As the context of the synonymous general indicates, statement he judge’s found that simply defendant killed Green in which Gary with along other evidence of defendant’s participation the fray, such firing gun twice, were proper bits relevant evidence on defendant’s violent bearing nature.
McDonald was the who witness testified at the- only sentencing hearing as to actually seeing the defendant fire a gun. He stated a rifle, defendant had but ballistics evidence indicated that bullet was not fired a rifle. This contradiction is not destructive Mc Donald’s testimony was matter to be resolved by - judge. trial could McDonald have been mistaken or the ballistics have evidence could been error. It ap pears that one other with only the defendant person on the other victim, side the wall from the his brother, McDonald. The evidence indicates only the defendant fired a gun. judge trial acknowledged *55 the case, of a problems but con surrounding type that cluded “the is positive evidence credible that the defendant did kill Mr. It the Green.” was trial court’s function to in the resolve conflicts evidence and to draw inferences therefrom. (See People v. Stewart (1984), 22, 66.) 105 Ill. 2d There is in the ample evidence record the trial court’s determination. It support v. (People not, therefore,
should be overturned. lightly Brownell I 508, 539-40.) Also, 79 Ill. do not 2d think the that State the nol-prossed charge that fact the for the murder of Green against sup defendant Gary It that of the majority opinion. appears ports holding with McDonald, person who saw defendant only the nolle prosequi at hearing. Gary not gun, did testify brother, Rochester, testified at that that hearing Green’s killed his At the someone the name “Rat” brother. case, his explained in this Rochester sentencing hearing the nolle prosequi hearing. He stated he at testimony not shot his He did see who brother. actually person the name did know the person by identity to the presented “Rat” that he had simply and stated prosequi hearing, at the nolle he information trial judge, as as well testimony, on the street. This picked up above, sentencing was all before the judge that detailed had killed Gary that when he concluded un that was not surrounding killing Green. The evidence reliable, It is no more concludes. majority opinion as is in than is other evidence conflict any unreliable not remove from been contradicted. do may or have We because simply the fact finder’s consideration evidence evidence, or have been conflict with may be in other may contradicted evidence. by previous trial erred
I court likewise do not think rea- his statements made prosecutor excluding In refus- the 1969 charge. sons for murder nol-prossing reasons, the court prop- to-consider ing prosecutor’s to what no “[tjhere’s importance stated erly findings also noted in its felt,” and attorneys “[i]t at that Mr. McDonald did not have seems that State it had before Thus, acknowledged time.” the court to the prosecutor than was available it more evidence and that nol-prossed, was charge the time the previous was dismissed why charge the reason the previous *56 not relevant to or probative of the issues before the court at I sentencing hearing. do not think the defendant was prejudiced the exclusion of this by evi- dence. reasons,
For these I dissent from the majority opin- ion’s on the holdings various issues from the con- arising sideration the court at the by second of the sen- phase tencing of matters hearing pertaining killing Green in 1969. Gary
As issues, to the Batson I dissent from the ma- only jority which remands the opinion’s holding matter to the trial court for a further Batson as to re- hearing jurors ferred to in the 13th, majority opinion as the 14th and 15th excused I persons by State. find that the opin- ion’s analysis Batson issues to the other relating jurors who had been peremptorily excused was thorough, and legally sound. logically
I believe that
the record reflects facts articulated by
the State which support a neutral
for the
explanation
ex-
ercise of peremptory
to excuse
challenges
jurors referred
to in the
as the
opinion
13th, 14th and 15th
ex-
persons
cused peremptorily
the State. I feel
that the majority
misread Uviedo v. Steves Sash & Door Co. (5th Cir.
1984),
“ is beyond province of a trial or reviewing court ‘[i]t to determine —after the fact —that certain facts in the might record have served as the basis for an employer’s ” [discriminatory (129 185.) Ill. 2d at act].’ This statement does not mean court, that this or re- any court, viewing is precluded from ar- considering clearly ticulated reasons for the use of a which challenge ap- in the record peared because the trial court made a just as to the finding legitimate exercise of a challenge which is not record, or no supported by made find- specific as to an ing Uviedo, articulated In reason. the Federal found
magistrate had had established plaintiff discrimination, prima case the defendant facie case, prima plaintiff rebutted the facie had failed reasons to show articulated merely defendant were Court of pretext. Appeals *57 that in the held there be facts record although may diffi- finding magistrate, which the of the support “[t]he here, however, is that defendant never articulated culty to the that in the reasons for magistrate these were fact the in challenged action.” particular (Emphasis original.) E2d the (738 1429.) language quoted majority in the context of the case does not opinion pre- Uviedo clude a court from reasons that reviewing considering are in the which the articulated for record prosecutor or not challenge, the exercise of whether peremptory are the trial for given finding the reasons court they by for the given that the State had a neutral explanation us hold challenge. only requires exercise Uviedo that the record disclose an for although may explanation cannot explanation the exercise of a be challenge, the trial court or a court by found to be either adequate review, on unless the articulated as a prosecutor This reason for a court exercising challenge. peremptory should, can, and for sake of evalu- economy the judicial the for ex- the the by prosecutor ate reasons articulated determine of and should challenges ercise peremptory explana- constitute neutral given whether the reasons need not We be challenges. tion the exercise facts in findings considering sup- limited to only thereof the trial court. port given by State, the major- by As to the 13th excused juror court’s reliance upon that the trial holds ity opinion a criminal de- friend was venireperson’s fact the State had never because improper fense lawyer that it ex- that this fact was reason articulated clearly It that juror. to excuse challenge ercised a peremptory that the State did not articulate as a reason for may be the fact that he had a friend who was excusing juror a criminal but the did lawyer, prosecutor clearly defense state, as a reason for that the excusing juror, juror councilman, as had a friend was a and a lawyer city who noted explanation by prosecutor quoted This with the fact majority coupled opinion. relationship, that the did further information con- not have prosecutor cerning juror, how influence relationship might caused him to use a to exclude the challenge peremptory I think this is a juror. valid neutral perfectly explanation for the use which this court peremptory challenge, is without the case capable evaluating sending back for another hearing.
Apparently, the defendant was not concerned about the trial court that the friend was finding by juror’s a criminal because this erroneous find- lawyer, defense ing is not mentioned in the defendant’s brief. The defendant, in the brief, statement-of-facts section of his sets forth the reason stated for exer- prosecutor *58 cising peremptory and the of the challenges findings court as to each of the 17 whose jurors challenges were questioned. As to the to the challenge we are now juror states, brief, the defendant considering, his that the prosecutor said he excused that juror because “primarily *** he had a friend who was a and a council- lawyer city man.” The defendant’s states brief that the court found that the excused this prosecutor juror “because he knew an Evanston city councilman who was also a In lawyer.” the brief, argument section of the defendant’s the rea- sons for and the excusing jurors findings of the court are as to six of the that specifically argued jurors were excused Also, the State. two others are re- by generally ferred However, to without detailed discussion. nowhere in the defendant’s was con- any argument brief made the of the articulated reasons for the cerning adequacy of 13th the of the juror, this or court challenge finding relation thereto which the now finds to majority opinion have been erroneous. in the
As to the referred as the 14th juror opinion State, excused the the states venireperson opinion the the that the lived that of court within finding juror in mile of the defendant’s residence was erroneous. It is that argues to note that the defendant’s brief teresting juror the State’s for excused explanation why it ex its for nearly explanation why “was identical the cused 12th excluded venireperson [the State].” that the for the The holds majority opinion explanation is, of 12th that exclusion the venireperson adequate, that “the did not have information prosecutor enough having the to feel comfortable with venireperson about Ill. her at 181-82. on 2d jury.” for the explanation Since the defendant argues with 14th excused was identical nearly venireperson excusing for the 12th it would venireperson, that given challenge the reason for approving appear of compel challenge would juror approval consideration. venireperson majority now under as to his the statement opinion quotes prosecutor juror. as to this knowledge (129 concern about his lack is This lack of what 186.) knowledge Ill. 2d at to in his as the reason that was refers brief 12th excusing with that given identical nearly venireperson. this ju- trial found judge
The mere fact residence in- ror within a mile of the defendant’s lived crime, the scene within 3V2 miles of stead of case, not detract asserts was does the defendant informa- of lack of adequate from the valid explanation *59 the prosecutor. tion in the record by articulated the State the final excluded venireperson by As to note colleagues in opinion, my discussed the majority failed to make a re specific finding that the trial court State’s exclusion of this and held that juror the garding this, there are sufficient in the findings no view of review. Ill. (129 record to a basis for provide appellate the this ju 2d at As noted in 187-88.) majority opinion, and ror was a woman whose husband was unemployed been a victim of an armed and robbery whose son had the trial his assailant. The prosecutor, had testified at of at the Batson that he did not know the stated hearing, this satisfied juror outcome of that case or whether was with the treatment her son had received. prosecutor dire voir this juror stated that was sketchy her, that he a lot of information about com did have to the information had as to other pared he prospective he jurors that was at that time. It must be considering remembered that this case the court conducted the voir dire. It is understandable that did prosecutor not want his case this un jeopardize by accepting known as a Just as the lack of juror. quantity adequate information on an which to base informed judgment in the considered to be an ex majority opinion adequate for 12th planation the exclusion chal venireperson State, it is an lenge likewise reason by adequate when articulated for the prosecution challenge voir dire other whom jurors about juror cards do not sufficient information to give permit to make an prosecutor informed determination. the court did not make
Although findings any specific as to the for ex- validity prosecutor’s explanation it did make a cusing juror peremptorily, general that the State had come with neutral finding expla- forth nations for its use of challenges. peremptory Mack, People v. court,
In trial at the conclusion of a Batson to make as to hearing, findings failed specific of the reasons stated prosecutor adequacy the use This court stated: challenges. of peremptory *60 judge’s ruling
“The oral and written order are suffi ciently for our here. specific purposes The record con transcript explanations tains the of the by offered prosecutor. judge The found those explanations be ade neutral, quate and race and sufficient to rebut prima case under Batson. There was no defendant’s facie further need for the trial to enter judge findings with re spect to each black member of the venire by excluded (People v. Mack prosecution.” 128 Ill. 2d 245- 46.)
The Mack majority opinion attempts distinguish by court, Mack, that the trial in found saying that the facts whereas, were not in in our case the trial court dispute, made no that the facts were not in specific findings dis (129 Ill. 2d at pute. 187-88.) This is distinction without a difference. The record discloses whether or not the facts are in and this court can make dispute, that deter mination as well as can a trial court. The in just holding Mack is In Mack, this case. we clearly controlling stated:
“Although credibility prosecutor’s of the explanations his conduct at the voir dire was in for dispute, the under (Mack, lying facts 246-47.) were not.” 128 Ill. 2d at The case, same our reasoning applies which contains no factual as to the for the dispute articulated reasons use of the It challenges. is suffi- peremptory only of these that is in and this ciency explanations dispute, court is perfectly from capable deciding question the record.
For the reasons I find it to re- given, unnecessary further mand this case to the trial court for a Batson as to these three The trial court hearing venirepersons. found the reasons articulated by prosecutor these were neutral. That excluding jurors finding racially is the record and is not errone- supported manifestly ous.
In I wish to out the needless closing, point additional and waste of resources that will occa delay judicial be sioned The crimes in majority opinion. this case were committed 1983. The defendant’s February first brief was filed in this court 1985. As August noted in the of the majority opinion, holdings by because Court, it was for us to Supreme necessary remand this case for a Batson which we did in hearing, May 1987. The is time, case now before us for the second we still have disposed appeal. majority opinion remands the case for a further Batson again *61 hearing, following again which will be to this appealed court for If the third time. we find that the peremptory used, were under the
challenges properly holding the case will to the majority opinion, again be remanded trial court for a new which sentencing could be hearing, held seven or more after the years original trial. What ever is penalty imposed at new sentencing hearing, another will If appeal death, follow. is penalty appeal will be to this If it directly court. is other than death, the court, will be to the appeal with a appellate petition event, for leave to to this court. In appeal any before the defendant’s first of his murder convic appeal tion of, is this disposed court and the trial court will each have considered this course, case four times. Of this will conclude the first round. The defendant only will then in the trial court under the proceed again pro visions Post-Conviction Act Hearing (Ill. Rev. Stat. ch. It is par. seq.). 122—1 et interesting to note that nowhere in the defendant’s briefs does he profess his innocence or that he say did not commit these Also, crimes. he does not contend the evi dence was not sufficient to him prove guilty beyond reasonable doubt.
I from dissent those portions majority opinion I discussed above. would affirm the defendant’s convic-
tions sentences. MILLER concurrence joins partial
JUSTICE dissent. partial (No. 64228 . ILLINOIS,
THE OF THE STATE Appel- PEOPLE OF BRISBON, lee, v. Appellant. HENRY Rehearing Opinion May filed 1989 . 29, 1989. September denied