*1 ILLINOIS, THE Plаintiff-Appellee, THE PEOPLE OF STATEOF PARKER, Defendant-Appellant. JOHN Second District No. 2 - 86-0628 15, 1988. Opinion February 2, 1988. Rehearing filed denied March *2 LINDBERG, RJ., concurring. specially DeWitt, Appellate Kim of State Defender’s Weller and both Joseph
G. Office, Elgin, for appellant. Attorneys, Geneva Casey, Robert E State’s
Robert J. Morrow and Schneider, Attorneys (William Cynthia N. both of State’s L. Browers and Office, counsel), People. for the Appellate Prosecutor’s of the court: opinion JUSTICE INGLIS delivered of home in- Defendant, Parker, charged with two counts John one count of residential bur- vasion, counts armеd and robbery, two all five counts him on guilty against returned verdicts glary. A jury vacate in part. affirm in and appeals. part from boyfriend, and her Willie Cindy Cissna January 20, On Be- their in Aurora. some friends in home Towns, entertaining were brother-in-law, Brian, left 8:30 and p.m., Cindy’s tween 8 and Willie with Cissna. stayed Beth Kenner behind to pick up pizza. home later, the door. minutes Cissna heard a knock on When Twenty standing at the door. opened silently the door she saw black man minute, point The at each other for about at which two looked coat, man into shotgun a sawed-off from under his walked pulled house, Cissnа to lie the floor not look up. Approxi- and told on and three masked followed the man into the house. mately persons black house, These individuals removed various valuables from the they Cissna was threatened a of times while were the house. couple Defendant was аrrested him from a picked photo- after Cissna graphic conducted three or four Kenner lineup days after incident. was unable to identify defendant. dire,
During voir the State six of its exercised chal- lenges exclude certain persons jury. Among those ex- Pendleton, cluded was Lenоra black juror. Defense counsel objected to the State’s use of against Mrs. recess, Pendleton. After a lunch the assistant State’s re- Attorney quested leave to make a his excusing record as to reasons for Pendleton. The State’s Attorney stated:
“I was concerned in hеr talking couple about a of things. one, Number appeared she had a relative who had previ- ously been convicted of an offense that was similar apparently to this one. That’s a always situation that’s flag red that con- *3 cerned me.
As well as I her, don’t mean to to be unkind but she did not seеm to me to be that intelligent of a She left out a number items on her questionnaire of and she wasn’t even fa- miliar type with what of work her husband does.
And I also—It also seemed me she was not the seri- ous type person, shall I that I say, would on this want jury. She about a laughed number of I’m things. looking for pеople on this case who are going to take this seriously case very and not flippantly. say
So I would that those were the that I reasons had for excusing Pendleton.”
The the court allowed peremptory challenge to stand. trial,
At Cissna testified that when she the first saw man her door before, that she thought had seen him two years to three the Montgomery apartment Gardens Cissna not remem- complex. did ber if she told the police on the of the day incident that the man at the door the man complex. resembled from the Two to four after days incident, police Cissna told Aurora Handle that the per- detective Parker, son at her door looked like John the man complex. from the However, for some time she doubted it was Parker because she did She think that “he do that to also stated at the [her].” occurrence, time of thе she was not it was Parker be- positive man at had hair Parker and had a cause the her door different than She “mean look” on his face that she never seen on Parker. later had positive her mind told that she was that the man changed police and 24, 1986, was Parker. On Cissna viewed а January photographic John picture Parker’s as the man had entered lineup picked John her home on January
The State later of Aurora presented police objection, Diane Carlson. Over defense counsel’s Carlson testified that at that time January Cissna’s statements on 20. Carlson stated man man that entered her home as a that she Cissna described the was the Montgomery apartment complex. familiar with from Gardens provide night. Cissna did not a name trial, on all guilty
At the close returned verdicts five sentencing counts. After a sentenced defendant hearing on all to be served years imprisonment concurrently. five counts timely appealed. Defendant the trial its
Defendant first contends that
court abused
discre
tion
the State’s
of a
to ex
upheld
when
of the
from the
Defendant
jury.
clude the
black member
venire
objeсtion
failure to sustain defendant’s
argues that
trial court’s
of the court’s discretion under Batson
was
exclusion
an abuse
In
79, 90 L. Ed.
“[A] on evidence solely the petit jury discrimination selection of challenges concerning exercise To such a at the defendant’s trial. establish cognizable of a racial first must show that is a member perеmp- exercised [citation], and has group remove the venire members challenges to tory Second, on rely is entitled race. the defendant *4 dispute, there no that fact, can be the to which practice permits a selection challenges jury constitute of a mind to discriminate.’ ‘those to discriminate are [Cita- any that these facts and must show Finally, the defendant tion.] prose- an inference other relevant circumstances.raise
127
practice
cutor used that
exclude the veniremen from
96,
of their
Despite
protestations
prima
a
State’s
of its
showing
pe
made
that the
facie
remptory challenge
exclude Mrs. Pendleton was
discrimina
racially
tory.
defendant,
black,
In the
is
a
present case it
clear that
as a
cognizаble
member
a
racial
and that
in the
group
case used a peremptory challenge to exclude a member of defendant’s
Thus,
race —Mrs.
only requirement
remaining
Pendleton.
to show was that
facts
any
these
other relevant cir
cumstances raised
inference that thе prosecutor used the peremp
tory
to exclude
challenge
(476
Mrs. Pendleton on
of race.
account
96,
87-88,
U.S. at
To
racially
be found
neutral
explanation
“[a]
need not
rise
the level justifying exercise of
a
for cause.”
(476
97,
U.S. at
88,
90 L. Ed. 2d at
But,
106 S. Ct.
1723.)
at
a prose
cutor may not merely respond with general
denying
assertions
had
racially
motive.
discriminatory
(476
98,
90 L.
U.S.
Ed. 2d at
88,
106 S. Ct. at
Instead,
the prosecutor must “articulate neutral explanation related to the particular
(476
case to be tried.”
98,
U.S. at
L. Ed. 2d at
128 its discre- if the trial court abused be reversed weight and will n.21, at n.21, at 89 106 S. Ct. 98 90 L. Ed. 2d See 476 U.S. at tion. 1724 n.21. for articulated three reasons
In the State present that he dismissed Pendleton. The stated prosecutor Mrs. dismissing been convicted previously she had a relative who had (1) her because defendant was be to the one for which of an offense that was similar (3) tried; intelligent person; not seem to be an ing (2) she did was not a serious reasоns
However, contends that when defendant it becomes apparent to the rest of compared for exclusion are argues that not neutral. Defendant racially exclusion was jurors to white applied by each of factors stated jurors notes that two defendant Sрecifically, were not excluded. who in were involved criminal on also had relatives who kept were conduct. case, present In the argument persuasive. find this do not of was convicted rob- her brother-in-law
Mrs. Pendleton stated that years. he five trial. For this served to the bery yеars prior present of was convicted Thus, crime that Mrs. Pendleton’s brother-in-law accused. In the crime of which defendant was similar in nature to was jurors the relatives of other contrast, activity the criminal crime as the nor as serious nature was neither similar were accused whоm defend- jurors One of the with was accused. of which defendant that she had a Mrs. Pendleton stated compare have us ant would case, in the instant was who, year a to the trial prior about brother togo For he had to off old this parts take some “going to car].” [an with juror The othеr whom and was fined. been an ex-husband who had Pendleton had compare have us in relation to the Kent a police interference with charged with riots. State rea- the first articulated opinion consequently
We are for dis- a neutral motive racially showed by enunciated the State son of the trial court the decision Pendleton and that missing Mrs. State’s reason- heard the after he had objection overrule we do not holding In this reaching not abuse discretion. ing address, the other two reasons the need address, nor do we feel Mrs. Pendleton. excluding the State by articulated erred in admit contends that trial court Defendant next as identifying Cissna’s statement of consistent ting prior pre at which she had an apartment complex at a man she had known that such evidence was argues the State viously response, lived. In Rog admissible statemеnt of identification under prior ers (1980),
As a rule general prior consistent statements are inadmissible to bolster the (People (1972), witness. v. Clark 52 Ill. 2d 374, 389.) However, supreme our court has held that there is an ex ception rule where the statement concerns general identification. (Ro gеrs, the court Rogers, stated: 388-90,
“In People v. Clark 52 Ill. 2d this court noted general rule that although may witness be present cross-examination, in court and subject may testify as statements he made out court for the purpose corroborating his testimony given trial relative to the same *6 to subjеct, except or charge rebut inference that the witness is motivated to falsely or that his is testify of recent general not, however, fabrication. This rule does to apply state ments of identification.” 81 Ill. at 578. 2d Defendant, however, argues Rogers that only applies to priоr con sistent statements of identification made viewing lineup, after pho sketches, tographs, or composite other similar forms of identification. Defendant contends that this case is far more to analogous the more recent of People case v. Emerson 2d (1983), Ill. disаgree. We in
Although the court Emerson held that it was improper to admit a prior consistent statement which dealt with identification (97 Ill. 2d at 501), it did not address the issue of whether the statement should be under exception admissible identification stated in Rogers. Therefore, although Emerson presents an apparently inconsistent out come with the decision reached in Rogers and the principles stated therein, dowe not believe that inconsistency such an can override the clear language Rogers. that the therefore hold trial court did not err in allowing Officеr to testify Carlson as Cissna’s prior statements concerning defendant’s identification.
Defendant next that one count of contends home invasion must be vacated since the facts reveal that he entered the home only once. We agree.
The statute home an making provides: invasion offense
“A person who is not a pеace acting in the line commits duty home invasion when without or authority he she enters the knowingly dwelling place of another when or or has knows reason know one or more persons is present
(1) armed dangerous While with a uses force or weapon upon threatens the imminеnt of force or any person per- occurs, not dwelling injury whether or place sons within such or or
(2) Intentionally any injury any person persons causes 1985, 38, Stat. ch. par. within such Rev. dwelling place.” 11(a). 12— for the Fourth District held Appellate In a recent Court potential or as “person persons” section 12—11 refers to because only one of a defendant could be found have committed victims of the number of victims. regardless fense (P there was one entry where 643, 646.) We find eople Yarbrough (1987), App. charg II and therefore conclude count reasoning persuasive ing home invasion must be vacated. in part part.
Affirmed in and vacated
UNVERZAGT,J., concurs. LINDBERG, concurring: specially
PRESIDING JUSTICE met it’s of rebut- that the State burden majority I agree with for it’s venire- establishing race-neutral bases tal by Kane the circuit court of affirming judgment I join County. finding trial court’s
However, I decline review the racial discrimination case of defendant established facie of the cir judgment resolution of the necessary to our is issue 152 Ill. v. Brown cuit court. and, as to address that issue unnecessary similarly
N.E.2d it was (166 dictum. notes, issue is Brown’s resolution the majority *7 not consider A reviewing ordinarily 3d at will Ill. App. determination are not essential or contentions questions (1978), 58 it. v. Berlin the cause before disposition or final on other 612, 616, grounds 374 N.E.2d rev’d 388 N.E.2d