THE PEOPLE OF THE STATE OF ILLINOIS v. KENNETH LEE PAYNE, JR.
No. 2-12-0856
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
2015 IL App (2d) 120856
JUSTICE HUDSON
Appeal from the Circuit Court of Winnebago County. No. 09-CF-3944. Honorable Gary V. Pumilia, Judge, Presiding. JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Zenoff concurred
OPINION
¶ 1 Following a jury trial in the circuit court of Winnebago County, defendant, Kenneth Lee Payne, Jr., was found guilty of aggravated vehicular hijacking (
¶ 2 I. BACKGROUND
¶ 3 On December 17, 2009, defendant was charged with one count of aggravated vehicular hijacking (
¶ 4 When the indictment was filed, defendant was serving a sentence in the Wisconsin Department of Corrections, based on a parole violation and a charge of possession of a controlled substance in that state. On January 27, 2010, officials from the Wisconsin Department of Corrections authored a letter to the Winnebago County State‘s Attorney‘s office. The letter stated that the Wisconsin Department of Corrections had received a “Warrant” in defendant‘s case and was treating it as a detainer. Attached to the letter were: (1) a written request from defendant dated January 26, 2010, for a final disposition of the untried charges in Illinois; (2) a notice that defendant was imprisoned in the Dodge Correctional Institution in Waupun, Wisconsin; (3) a certificate of his offender status; and (4) an offer to deliver temporary custody of defendant. The letter was sent to the Winnebago County State‘s Attorney‘s office by certified mail and received by that office on February 1.1 The letter also indicated that it was “carbon copied” to the “Winnebago County Clerk of Circuit Court.”
¶ 5 Defendant‘s first appearance in Winnebago County was on May 12, 2010. At that time, William Weatherly, an assistant public defender, was appointed to represent defendant. Continuances were agreed to by defense counsel from the date of defendant‘s first appearance through October 27, 2010. On October 27, 2010, defense counsel announced that defendant
¶ 6 On May 11, 2011, defendant initially indicated that he wanted to “[c]ontinue with [his] 120” (speedy-trial period) and set the case for trial. Defendant stated that he intended to waive a hearing on the motion to suppress identification evidence but that he still wished to pursue the motion to suppress statements. Accordingly, the trial court continued the case to June 14, 2011, on defendant‘s motion and tolled the time “until after that motion [to suppress statements] is heard.” On June 14, the case was continued again to June 28, 2011, due to the trial court‘s unavailability to hear the motion to suppress statements.
¶ 7 On June 28, 2011, defendant informed the court that he wanted to withdraw the motion to suppress statements and “just continue with [his] 120.” Upon the State‘s request, the court set a trial date of July 18, 2011. On July 14, 2011, the State sought a continuance of the trial date to August 15, 2011, due to its failure to serve subpoenas on two out-of-state witnesses and its recent request for DNA testing on some materials that had not yet been examined. The State acknowledged that, if the court granted a continuance, “all the time would be on [the State].” Over defendant‘s objection, the continuance to August 15 was granted, with a pretrial date of August 11. Also on July 14, the court granted defendant‘s request for an investigator to speak to a potential witness.
¶ 8 On August 11, 2011, the State answered ready for trial. The State indicated that it made “a strategic decision” to continue without the DNA information, explaining, “We don‘t think it will be depositive [sic] one way or the other and don‘t want to delay the case anymore, and all of our witnesses have been served.” However, defendant expressed frustration over his inability to obtain the services of the investigator the court had referred to him. Defendant stated that he wanted counsel reappointed, but he requested someone other than the public defender, remarking that he had fired Weatherly because “he wasn‘t doing anything I‘m sayin‘.” The court reappointed the public defender‘s office, and Assistant Public Defender Edward Light was assigned to the case.2 Upon defendant‘s motion, the case was taken off the trial call and continued until September 14, 2011, for status. The State then indicated that, “as long as [it has] time,” it was going to “go ahead and have the DNA.”
¶ 9 Thereafter, the case was continued several times on defendant‘s motion. On January 13, 2012, defense counsel indicated that he needed some time to speak with defendant regarding the results of a Rule 402 conference (see
¶ 10 On March 22, 2012, the State announced that it was ready for trial. However, the State then indicated that it was not certain whether materials relating to the DNA analysis that were discoverable pursuant to
¶ 11 On March 26, 2012, both sides answered ready for trial. The State related, however, that since the date of the pretrial the prior week, it had learned that the Rule 417 materials had not been turned over to the defense. In addition, the State had learned that its fingerprint expert had located additional prints that the expert wanted to examine, but that this would delay the expert‘s report. Defense counsel stated that, because the Rule 417 materials were discoverable and should have been provided to the defense, the court should exclude any DNA evidence as well as the proposed new fingerprint evidence. The trial court found that it would be unfair for the State to continue to test materials and turn over the information during the course of the trial. The State said that it would then make an oral motion for a one-day continuance to give defense counsel time to absorb the Rule 417 materials.
¶ 12 The parties then discussed what dates were attributable to the State for speedy-trial purposes. The State represented that it was “still well within [its] 120.” Defense counsel responded that there were two time periods at issue, the 120-day speedy-trial term (see
¶ 13 Jury selection commenced on April 2, 2012, with the trial court announcing that the parties would select jurors by questioning panels of six. After the State questioned the first panel of six, consisting of two women and four men, it excused venirepersons Deidre Tillman, an African-American female, and Jennifer Juliano, a white female. Defense counsel objected to the exclusion of the women as based on race and gender grounds, citing Batson. The State responded that both Tillman and Juliano “have criminal convictions.” After excusing the venire from the courtroom, the parties presented further argument. At the close of this argument, the trial judge overruled the Batson objection to the State‘s peremptory strikes, finding that the State‘s reason for excusing Tillman and Juliano was “race neutral and gender neutral.” Six jurors were selected on April 2, with the remaining six and the alternates selected on April 3. After both the jury and the alternates were selected, defense counsel renewed his Batson objection. Following additional argument by the parties, the trial court again overruled the Batson objection.
¶ 14 The matter then proceeded to trial. At the close of the trial, the jury returned verdicts finding defendant guilty of aggravated
¶ 15 At a hearing held on July 27, 2012, the parties agreed that defendant should be given credit against his Illinois sentence for the period from January 26, 2010, the date the detainer was entered, to July 26, 2012, a total of 911 days. After hearing argument from both sides, the court sentenced defendant to a term of 20 years’ imprisonment for aggravated vehicular hijacking and a concurrent 5-year term for aggravated battery. Following the denial of his motion to reconsider the sentence, defendant filed a timely notice of appeal.
¶ 16 II. ANALYSIS
¶ 17 A. Interstate Agreement on Detainers
¶ 18 On appeal, defendant first argues that defense counsel was ineffective for failing to move for the charges to be dismissed pursuant to the 180-day speedy-trial provision of article III of the Interstate Agreement on Detainers (Agreement) (
¶ 19 To determine whether a defendant was denied the effective assistance of counsel, we apply the two-pronged test developed in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under that test, a defendant must establish both that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant such that he was deprived of a fair trial. Strickland, 466 U.S. at 687; People v. Wigman, 2012 IL App (2d) 100736, ¶ 31. Because a defendant must satisfy both prongs of the Strickland test, the failure to prove either prong precludes a finding of ineffective assistance. People v. Theis, 2011 IL App (2d) 091080, ¶ 39. As a general rule, whether defense counsel provided ineffective assistance is subject to a bifurcated standard of review, in which a reviewing court defers to the trial court‘s findings of fact unless they are against the manifest
¶ 20 In demonstrating that counsel‘s performance was deficient under the first prong of the Strickland test, a defendant must overcome the strong presumption that counsel‘s conduct under the circumstances constituted sound trial strategy. People v. Houston, 226 Ill. 2d 135, 144 (2007). Furthermore, with regard to the second prong of the Strickland test, a defendant was deprived of a fair trial when there is a reasonable probability that but for counsel‘s deficient performance the result of the proceeding would have been different. Houston, 226 Ill. 2d at 144.
Thus, failing to move for a dismissal on the basis of a violation of the Agreement‘s speedy-trial provision will constitute ineffective assistance of counsel when there is at least a reasonable probability that the defendant would have been discharged had a timely motion been filed and there was no justification for defense counsel‘s decision not to file a motion. See Wigman, 2012 IL App (2d) 100736, ¶ 31 (citing People v. Peco, 345 Ill. App. 3d 724, 729 (2004)); People v. Hernandez, 345 Ill. App. 3d 163, 172 (2004); People v. Garcia, 251 Ill. App. 3d 473, 478-79 (1993). On the other hand, counsel‘s failure to assert a violation of the Agreement‘s speedy-trial provision cannot establish either prong of an ineffective-assistance claim if there was no lawful basis for raising a speedy-trial violation. See Wigman, 2012 IL App (2d) 100736, ¶ 31 (citing People v. Phipps, 238 Ill. 2d 54, 65 (2010)). Accordingly, we must first determine whether defendant‘s right to a speedy trial under the Agreement was violated before we can determine whether defense counsel was ineffective. See Wigman, 2012 IL App (2d) 100736, ¶ 31.
¶ 21 The Agreement is a uniform compact that has been adopted by the United States, the District of Columbia, and 48 states. New York v. Hill, 528 U.S. 110, 111 (2000); Fex v. Michigan, 507 U.S. 43, 44-45 (1993); People v. Adams, 2012 IL App (5th) 100088, ¶ 10. Both Illinois and Wisconsin are parties to the Agreement.
¶ 22 The Agreement sets forth the procedure for bringing a defendant imprisoned in one state (the holding state) to trial on charges pending in another state (the receiving state).
¶ 23 The method for bringing a defendant to trial depends upon which article of the Agreement applies. Article III of the Agreement permits a prisoner to request final disposition of an untried indictment, information, or complaint.
¶ 24 Article III(a) of the Agreement provides in pertinent part:
“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for a good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.”
730 ILCS 5/3-8-9 , art. III(a) (West 2008).
Section (c) of article III states that the prison officials who have custody of the prisoner “shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition” of the charges on which the detainer is based.
¶ 25 Thus, compliance with article III of the Agreement requires the following steps. Initially, the receiving state must lodge a detainer with the holding state.
¶ 26 As noted above, defendant argues that counsel‘s failure to move for the charges’ dismissal under the speedy-trial provision of article III of the Agreement constituted ineffective assistance of counsel. Defendant contends that there is a reasonable probability that the charges would have been dismissed, because more than 180 days elapsed from when the Winnebago County State‘s Attorney‘s office received his request for final disposition to the start of his trial. According to defendant, excluding delays attributable to or agreed to by the defense, a total of 191 days elapsed from the time he caused to be delivered to the State his request for final disposition and the commencement of his trial. Defendant calculates the 191 days as follows: (1) 100 days from February 1, 2010 (when the State received his request for final disposition), through May 12, 2010 (when he first appeared in court in Winnebago County); (2) 40 days from October 27, 2010 (when he first requested a trial date to be set), through December 6, 2010 (the trial date requested by the State); (3) 44 days from June 28, 2011 (when defendant, then proceeding pro se, withdrew his motion to suppress statements and demanded trial), through August 11, 2011 (when defendant requested the reappointment of counsel); and (4) 7 days from March 26, 2012, through April 2, 2012, due to the State‘s request for a continuance based on its failure to fully comply with discovery and its request to examine additional fingerprints. Defendant further asserts that no justification was provided for counsel‘s failure to seek the charges’ dismissal under the Agreement.
¶ 27 The State responds that defense counsel was not ineffective for failing to move for dismissal under the 180-day speedy-trial term set forth in article III of the Agreement. The State‘s argument is twofold. First, the State contends that, in calculating the 180-day speedy-trial term, defendant incorrectly includes the 100-day period commencing on February 1, 2010. According to the State, this 100-day period should not be counted, because (1) the
¶ 28 We are compelled to agree with the State and hold that defendant has failed to establish that there is a reasonable probability that the charges would have been dismissed pursuant to the Agreement had his attorney moved for dismissal prior to trial. In particular, because the record does not establish the date when defendant‘s request for final disposition was actually delivered to the Winnebago County circuit court, it is impossible to determine if defendant was brought to trial after the expiration of the 180-day period set forth in article III(a) of the Agreement.
¶ 29 The record establishes that on January 26, 2010, defendant executed his request for final disposition of the Winnebago County charges. The following day, the Wisconsin Department of Corrections authored a letter directed to the Winnebago County State‘s Attorney. The letter included a copy of defendant‘s request for final disposition as well as a written notice of defendant‘s place of imprisonment, a certificate of his offender status, and an offer to deliver temporary custody of defendant. The letter also indicated that it was “carbon copied” to the “Winnebago County Clerk of Circuit Court.” The Winnebago County State‘s Attorney‘s office received the correspondence by certified mail on February 1, 2010. However, the record does not reflect that the letter and its attachments were actually delivered to the clerk of the Winnebago County circuit court.
¶ 30 In Fex, 507 U.S. 43, the United States Supreme Court addressed whether the 180-day period set forth in article III(a) of the Agreement commences when the prisoner transmits his request for final disposition to prison officials or when the request is delivered to the prosecuting officer and the appropriate court. Fex, 507 U.S. at 47. Ultimately, the Court held that the 180-day period does not commence “until the prisoner‘s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.” (Emphasis added.) Fex, 507 U.S. at 52. In so holding, the Court recognized the possibility that, through negligence or malice, a prison official could postpone commencement of the 180-day period by failing to properly forward a defendant‘s request. Fex, 507 U.S. at 49-50. Nevertheless, the Court determined that a significantly worse scenario would result if the speedy-trial term commenced on the date the prisoner‘s request is transmitted to prison officials, because if, through an official‘s negligence, the prisoner‘s request is delivered to the court and the prosecuting officer long after the 180-day period has expired, the prisoner‘s untried charges would be dismissed before the prosecuting authorities were even aware that the prisoner had requested final disposition. Fex, 507 U.S. at 50. The defendant in Fex argued that fairness requires the burden of compliance with the Agreement‘s requirements to be placed entirely on the law enforcement officials involved since the prisoner has little ability to enforce compliance. Fex, 507 U.S. at 52. The Court rejected this argument, stating that it is more appropriately addressed to the legislatures of the states
¶ 31 After the Supreme Court decided Fex, federal courts interpreted the decision as providing that the speedy-trial period under article III(a) of the Agreement does not commence until both the court and the prosecuting officer actually receive the request for final disposition. Thus, for instance, in United States v. Collins, 90 F.3d 1420, 1425-26 (9th Cir. 1996), the defendant‘s demand for final disposition was received by the United States Marshal on May 6, 1994. The Marshal filed a copy of the demand with the district court on May 10, 1994. The defendant argued that the speedy-trial period under the Agreement began to run on May 6, reasoning that delivery to the Marshal also constituted delivery to the district court. The Collins court rejected this argument, explaining that ”Fex instructs us that the [Agreement] means what it says. And when it says that the prisoner must have his demand ‘delivered to the . . . appropriate court,’ that is what it means.” Collins, 90 F.3d at 1426. The court concluded that delivery to the Marshal did not constitute delivery to the district court, because the Marshal is not an agent of the court. Collins, 90 F.3d at 1426. Since actual delivery to the district court did not occur until May 10, that is when the speedy-trial period began to run. Collins, 90 F.3d at 1426; see also United States v. Paredes-Batista, 140 F.3d 367, 374-75 (2d Cir. 1998) (holding that where the defendant‘s request for final disposition was delivered to the district court and the prosecuting officer on different dates, the later date would commence the 180-day speedy-trial term).
¶ 32 More recently, in United States v. Brewington, 512 F.3d 995 (7th Cir. 2008), the court held that a prisoner‘s demand for a speedy trial pursuant to article III(a) of the Agreement did not trigger the 180-day period where, although his demand was received by the United States Attorney‘s office, it was never delivered to the district court. The Brewington court acknowledged that the Agreement is to be liberally construed. Brewington, 512 F.3d at 997. Even so, the court stated that this command cannot overcome the Supreme Court‘s literal interpretation that the demand for final disposition is to be delivered to the prosecuting officer and the appropriate court. Brewington, 512 F.3d at 997. Moreover, relying on Fex, the Brewington court explained that although “[p]rison authorities are charged with sending the demand to the prosecutor and the court *** the prisoner bears responsibility for ensuring that his jailors follow through.” Brewington, 512 F.3d at 997 (citing Fex, 507 U.S. at 49).
¶ 33 In United States v. Washington, 596 F.3d 777 (10th Cir. 2010), cert. denied, 561 U.S. 1036 (2010), the Bureau of Alcohol, Tobacco, and Firearms (ATF) lodged a detainer against the defendant, who was then incarcerated in Kansas. The defendant, acting pro se, drafted a document titled ” ‘Final Disposition of Detainer.’ ” Washington, 596 F.3d at 779. The defendant then sent two copies of the document to the same mailing address, but directed one copy to the ” ‘Department of Justice, Issuing prosecutor’ ” and the second copy to the ” ‘Department of Justice, Court.’ ” Washington, 596 F.3d at 779. The United States Attorney‘s office, which was located at the mailing address used by the defendant, received both documents. It did not forward a copy to the district court, which was located at a different address. Subsequently, the defendant submitted a request for final disposition through the Kansas Department of Corrections (KDOC). KDOC sent the request by certified mail to the ATF. Neither KDOC nor the ATF
¶ 34 On appeal, the defendant renewed his argument that the Agreement had been violated. However, the Washington court held that, because actual delivery to both the prosecuting officer and the court was not accomplished, there had been no violation of the Agreement. Washington, 596 F.3d at 780-81. The court rejected the defendant‘s argument that he was entitled to relief because the United States Attorney‘s office should have forwarded to the district court the request addressed to the ” ‘Department of Justice, Court.’ ” Washington, 596 F.3d at 780-81. The court relied on Fex, noting that that decision expressly requires actual delivery to both the prosecutor and the court. Washington, 596 F.3d at 781. The court further noted that the Fex Court refused to carve out a “fairness” exception to the express language of the Agreement in cases in which a third party had negligently or maliciously prevented delivery from occurring. Washington, 596 F.3d at 781 (citing Fex, 507 U.S. at 50-52).
¶ 35 Various state courts have also held that the 180-day period set forth in article III(a) of the Agreement does not begin to run until the prisoner‘s request for final disposition is received by both the prosecuting officer and the appropriate court in the receiving state. See, e.g., State v. Dodson, 2009 MT 419, ¶ 41, 354 Mont. 28, 221 P.3d 687 (holding that the speedy-trial provisions of the Agreement are not triggered until the prosecutor and the court receive the prisoner‘s request for a final disposition); Peterson v. State, 73 P.3d 108, 110-12 (Idaho Ct. App. 2003) (holding that 180-day period did not begin to run where prison officials forwarded the defendant‘s request for a final disposition to the court clerk but not to the county prosecutor); State v. Somerlot, 544 S.E.2d 52, 59-60 (W. Va. 2000) (holding that 180-day period did not begin to run where prison officials forwarded the defendant‘s request for final disposition to the prosecutor but not to the court clerk); Crosland v. State, 857 P.2d 943, 945-46 (Utah 1993) (holding that 180-day period did not begin to run where the defendant‘s request for a final disposition was never delivered to the appropriate court and prosecuting official).
¶ 36 Here, the record suggests that Wisconsin prison officials mailed a copy of defendant‘s paperwork to the Winnebago County circuit clerk. However, the record is devoid of any indication that the mailing was actually delivered to the clerk. Given these circumstances, and in light of the clear authority cited above, we cannot determine when the 180-day speedy-trial period began to run. Consequently, we cannot conclude that the 180-day speedy-trial provision of article III(a) of the Agreement was violated.
¶ 37 Defendant nevertheless argues that there is a legal presumption that a letter that is properly addressed, stamped, and mailed was received by the addressee. See City of Chicago v. Supreme Savings & Loan Ass‘n, 27 Ill. App. 3d 589, 592 (1975). Defendant‘s position misses the mark. To say that a letter is presumed to be delivered does not answer the question of when the letter was delivered. It is the date of delivery, not just the fact of delivery, that is the critical inquiry in calculating the speedy-trial period under article III(a) of the Agreement. See, e.g., Paredes-Batista, 140 F.3d at 374-75; Collins, 90 F.3d at 1426. Without knowing precisely when defendant‘s request was delivered to the circuit court, it is impossible to determine whether a violation of the Agreement occurred. See Morganfield v. State, 919 S.W.2d 731, 734 (Tex. App. 1996) (noting that, in the absence of proof of when both the trial court and the prosecuting attorney received the defendant‘s request for final disposition under the Agreement, the court was unable to determine when the 180-day speedy-trial term began to run).
¶ 38 Although not cited by defendant, we note that our supreme court rules provide that, “[w]hen service of a paper is required,” “[s]ervice by mail is complete four days after mailing.”
¶ 39 In short, we conclude that defendant has not established when the 180-day speedy-trial term under article III(a) of the Agreement began to run. Therefore, defendant has failed to demonstrate that a motion to dismiss based on a violation of the Agreement‘s speedy-trial provision would have merit. As such, we reject the notion that defendant‘s right to a speedy trial under the Agreement was violated. Since defendant has not established that there is a reasonable probability that he would have been discharged had a timely
¶ 40 B. Jury Selection
¶ 41 Next, defendant claims that he should receive a new trial because the State used a peremptory challenge to exclude Tillman on the basis of her race.4 The State disputes defendant‘s claim, asserting that it excused Tillman for race-neutral reasons.
¶ 42 The equal-protection clause of the
¶ 43 Once a defendant establishes a prima facie case of purposeful discrimination, the process moves to the second step, where the burden shifts to the State to articulate a race-neutral explanation for excluding each venireperson in question. Batson, 476 U.S. at 97; Easley, 192 Ill. 2d at 323-24. “A race-neutral explanation is one based upon something other than the race of the venireperson.” Easley, 192 Ill. 2d at 324. During the second step, the trial court focuses on the facial validity of the State‘s explanation, and the explanation need not be persuasive or even plausible. Easley, 192 Ill. 2d at 324. The defendant may then rebut the State‘s reasons as being pretextual. Easley, 192 Ill. 2d at 324. At the third step, the trial court must determine whether the moving party has met its burden of establishing purposeful discrimination. Batson, 476 U.S. at 98; Easley, 192 Ill. 2d at 324. During this final step, the trial court evaluates the reasons provided by the nonmoving party as well as the claims by the moving party that the proffered reasons are pretextual. Easley, 192 Ill. 2d at 324; Mack, 371 Ill. App. 3d at 44. Because the trial court‘s ultimate ruling on a Batson claim is entitled to great deference, it will not be reversed on review unless clearly erroneous. People v. Davis, 231 Ill. 2d 349, 364 (2008); People v. Hogan, 389 Ill. App. 3d 91, 100 (2009). A determination is clearly erroneous only when a review of the entire record leaves the reviewing court with the definite and firm conviction that a mistake has been made. Hernandez v. New York, 500 U.S. 352, 369 (1991).
¶ 44 Tillman, an African-American female, and Juliano, a white female, were part of the first group of six venirepersons questioned during voir dire. Initially, the court questioned the group. The court noted that Tillman “was in some trouble before” and asked her whether “that [is] all over and done with.” Tillman answered in the affirmative. The court then inquired, “Is there anything about that that would put either side here at an advantage or a disadvantage in this case?” Tillman responded “no” and further agreed that she could “put that out of [her] mind during the pendency of this case.” Similarly, the court noted that Juliano was “in some trouble a long time ago.” Like Tillman, Juliano indicated that she could put that experience out of her mind during the pendency of the case and that there was nothing about that experience that would advantage or disadvantage either side. During the State‘s questioning of Tillman and Juliano, it briefly noted that Tillman had “some issues” with the law and that Juliano “had a problem about a dozen years ago.” After questioning the remainder of the group of six venirepersons, the State used peremptory challenges to excuse Tillman and Juliano. Defendant raised a Batson objection. The State responded by noting that both Tillman and Juliano had criminal convictions.
¶ 45 During further argument, defendant stated that he was objecting to the exclusion of Tillman as based on racial grounds and to the exclusion of both Tillman and Juliano as based on gender grounds. Defense counsel noted that the venire consisted of 40 individuals, only 4 of whom were African-American. Defense counsel further noted that the court had already excused one of the four African-Americans for medical reasons. In response, the State reiterated that it exercised its peremptory challenges with respect to Tillman and Juliano because both women disclosed that they had criminal convictions. The State explained that it made a “tactical decision” that it did not want an individual with a criminal conviction “if [it] had the preemptories [sic] available to [it].” The prosecutor further remarked:
“Every jury trial that is tried by people in my office, we run criminal histories on every person we believe may be called to a venire for the express purpose of knowing people‘s criminal background so that we can make a decision based on the situation of where we are with preemptories [sic], who‘s left in the venire panel whether we‘re going to strike people. And it is always my practice to try and eliminate people with criminal records.”
At the close of argument, the trial court overruled the Batson objection, finding that the State‘s reason for exercising the peremptory challenges was both race- and gender-neutral.
¶ 47 As the foregoing discussion suggests, the State offered its explanation for striking Tillman and Juliano immediately after defendant initially raised his Batson claim and before the trial court had an opportunity to determine whether a prima facie showing had been made under the first step of the Batson analysis.6 However, the court did determine that the State had an adequate race-neutral reason for exercising the peremptory challenges. Accordingly, we need not address whether a prima facie case was made under Batson and we determine only whether the trial court erred in finding that the State‘s explanation for striking Tillman was race-neutral and valid. See Easley, 192 Ill. 2d at 325; see also People v. Rivera, 221 Ill. 2d 481, 506 (2006) (“[W]hether a prima facie case of discrimination exists at the outset becomes a moot point after the trial court finds valid and race-neutral reasons supporting the peremptory challenge *** ‘“).
¶ 49 Defendant nevertheless asserts that the State‘s explanation for striking Tillman was pretextual because the State later accepted two white jurors (Nyman and Gates), who also had criminal convictions. However, the State‘s acceptance of Nyman and Gates does not, under existing case law, establish that its explanation for striking Tillman was pretextual. See People v. Hudson, 157 Ill. 2d 401, 431 (1993). Moreover, where a small number of peremptory challenges remains, a character trait that might have resulted in the use of a peremptory challenge at an earlier point in jury selection might no longer call for the excusal of a prospective juror sharing that characteristic. See People v. Taylor, 409 Ill. App. 3d 881, 903 (2011) (“[T]he State provided an additional reason for excusing some, but not all, social workers from the venire, namely, that it had only seven peremptories and social workers were in ‘abundance,’ so it could not excuse every social worker.“). In this case, the State consistently asserted that its use of peremptory challenges to excuse venirepersons with criminal histories would depend on the number of peremptory challenges available to it.
¶ 50 Significantly, when defendant first raised his Batson objection, the State asserted that it made a “tactical decision” that it did not want an individual with a criminal conviction on the jury “if [it] had the preemptories [sic] available to [it].” Subsequently, when defendant renewed his Batson objection immediately prior to the commencement of trial, the State reiterated that its use of peremptory challenges was “strategic based on how many preempts [sic] [it] had left.” The State added that it “didn‘t feel that tactically [it] could allow [itself] to make a strike and then potentially have someone worse end up on the jury.” As noted earlier, the trial court accepted the State‘s explanation, recognizing that “the situation at the beginning of jury selection is different than the situation at the end of jury selection.” The court further noted that Gates was excused by the defense and that the State‘s reason with respect to Nyman was race-neutral. Given the record before us, we are unable to conclude that the court‘s finding is clearly erroneous.
¶ 51 In this case, each party had 7 peremptory strikes to use with respect to the selection of the 12-person jury. See
¶ 52 The State faced a similar choice with respect to the selection of Gates. By the time Gates was called, the parties had selected 11 individuals for the 12-member jury. Gates was called with two other venirepersons, Nathan Nelsen and Lierman. Gates, Nelsen, and Lierman were questioned with three other venirepersons (Frank Azaretto, Wilma Thomas, and Amanda Browman). Azaretto was excused for cause, and Thomas became the twelfth member of the jury. The remaining four venirepersons (Gates, Nelsen, Lierman, and Browman) were potential alternates. During voir dire, the trial court noted that Gates was “in some trouble awhile ago” and asked whether that was “all over and done with.” Gates responded in the affirmative. Gates further indicated that he could put that experience out of his mind during the pendency of the case and that there was nothing about that experience that would put either side at an advantage or disadvantage. Like Gates, Lierman also indicated that he had been “in some trouble awhile ago,” but that the matter was “all over and done with.” However, Lierman indicated that he did not know if he could “get over” the beyond-a-reasonable-doubt standard, describing it as a “pretty high bar.” Lierman further commented that “it seems almost impossible” to meet that standard. Despite these remarks, Lierman later indicated that he could fulfill his duty as a juror. Lierman also hesitated when the State asked him if he would judge the testimony of an African-American witness differently from that of any other witness, but he indicated that he would take the testimony of any witness “as what it is.”
¶ 53 Defendant also argues that Tillman was questioned more than the other persons on the venire and that this demonstrates that the State was searching for a pretextual reason to dismiss her. To the extent that Tillman was questioned more than the other venirepersons, we attribute it to two factors. First, Tillman was the very first venireperson questioned. Second, the method of questioning differed from one venireperson to the next. Some members of the venire, like Tillman, were questioned individually. Others were questioned as a group and still others were questioned both individually and as a group. More important, we find that the types of questions posed to Tillman were also asked of other venirepersons throughout voir dire, including some by defense counsel. For instance, Tillman was asked about her profession, how she handles disagreements, what one can discern from a person‘s appearance, and her television-viewing habits. Similar questions were posed to other venirepersons. The State also asked Tillman what she would do if she disagreed with the law, whether she could withhold judgment until she heard all of the evidence in the case, and whether she would have any reservations about making a judgment in the case. Again, questions of this nature were asked of other venirepersons. Furthermore, just as Tillman was also questioned about her last encounter with a police officer and whether she was satisfied with her treatment, other potential jurors were asked about previous police encounters and any treatment they received while dealing with the justice system in general. These questions addressed the ability of the venirepersons to render a verdict based on the law and the evidence, to speak their minds during deliberations if chosen, and to put aside any preconceived notions that might have come from television. Accordingly, we are compelled to reject defendant‘s claim that the State‘s questioning of Tillman demonstrated that it was searching for a pretextual reason to dismiss her.
¶ 54 Defendant also suggests that the State‘s proffered reason for striking Tillman was pretextual in light of the fact that, by the time of the hearing on his posttrial motion, the prosecutor could not recall her proffered reason for striking Tillman. Defendant‘s argument ignores the facts that Tillman was but one of seven venirepersons against whom the State exercised peremptory challenges and that the hearing on the posttrial motion was more than three months after jury selection occurred. Under these circumstances, we cannot conclude that the prosecutor‘s lack of recall regarding the specific reason for striking Tillman establishes that her stated reason was pretextual.
¶ 55 In sum, in light of the foregoing, we are not left with a “definite and firm
¶ 56 III. CONCLUSION
¶ 57 For the reasons set forth above, the judgment of the circuit court of Winnebago County is affirmed.
¶ 58 Affirmed.