APPEAL from the Circuit Court of Cook County; the Hon. JAMES
SCHREIER, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, the defendant, James Bracey, was convicted of attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8-4), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4), and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 through 33A-3). He was sentenced to a 13-year term in the penitentiary. The defendant appeals his conviction, alleging that (1) he was denied his constitutional rights to an impartial jury, due process of law, and the equal protection of the law where the State exercised its peremptory challenges to exclude from the jury all members of the defendant's race; (2) the court erred in denying the admission of the preliminary hearing transcript of a witness who invoked her fifth amendment right against self-incrimination or, alternatively, in refusing to compel the State to grant immunity to such witness; (3) the court erred in failing to suppress the use of the defendant's prior conviction of murder for purposes of impeachment; (4) the court erred in allowing the State to introduce certain out-of-court statements made by the victim; (5) the court unduly restricted the defendant's cross-examination of the State's only occurrence witness; (6) the State made several improper and prejudicial remarks during its closing argument; and (7) the court erred in refusing to give the missing witness instruction tendered by the defendant.
The defendant was accused of shooting Isaac Neal with a handgun on August 11, 1978. At trial Neal testified that he went to the defendant's house on the morning of August 11, 1978. They left in the defendant's car and spent most of the day "busting scripts." Neal explained that this meant they were attempting to fill prescriptions for drugs. Later, during cross-examination, Neal stated that he obtained the prescriptions from a doctor but was prevented from naming the doctor by a prosecution objection. While engaged in this activity, Neal and the defendant were joined by Ronald Mallette, Cecelia Walls and Dorshelle Sanders. At approximately 8 p.m., they stopped in a parking lot. The defendant pulled out a pistol, pointed it at Neal and said, "What is that that you are doing there. It sounds like I heard a gun." The defendant searched Neal while Ronald Mallette drove the car to the vicinity of 2700 South Dearborn. Neal testified that the defendant then forced him out of the car and shot him three times.
On cross-examination, Neal was asked whether he ever told the police that he and Cecelia Walls were in Ramsey's Tavern when the defendant came in, ordered them outside, robbed and shot Neal, and kidnapped Walls. Neal at first did not recall telling this story. Upon further questioning, Neal stated that he was never in Ramsey's Tavern on the day of the shooting. He denied hearing the kidnap story until that moment in court. The defense subsequently called Investigator Popovits, who testified that he and Assistant State's Attorney Melanie Vogl interviewed Neal at the hospital. During that interview, Neal told Popovits and Vogl that the defendant kidnapped Neal and Walls from Ramsey's Tavern. The State then cross-examined Popovits. Over an objection by the defendant, Popovits stated that in a subsequent interview with Neal, Neal changed his story to conform to his present trial testimony. Popovits testified that Neal told him that he made up the kidnap story because he was afraid to tell the police about his "script busting" activities. On redirect examination, Popovits said that he made two police reports concerning his conversations with Neal. He admitted that neither of the reports contained Neal's "script busting" story. In rebuttal and over a defense objection, the State was permitted to call Assistant State's Attorney Melanie Vogl. Vogl testified that she was present during the hospital interview with Neal and that Neal stated he was with the defendant attempting to fill prescriptions on the date of the assault.
Outside the presence of the jury, the defendant called Dorshelle Sanders, who invoked her fifth amendment privilege against self-incrimination. The defendant informed the court that Sanders testified under oath at the preliminary hearing that she had shot Neal. The State cross-examined Sanders at the preliminary hearing. The defendant moved for the introduction of Sanders' preliminary hearing transcript and asked that it be read to the jury in the absence of her trial testimony. The court denied the motion. The defendant then moved that the court order the State to grant immunity to Sanders so she could testify as a defense witness. This motion was also denied.
The defendant next made a motion to suppress the use of his prior conviction for murder as impeachment evidence. He was convicted in 1966 and released from prison in 1976. The court refused to suppress the conviction, and the defendant decided not to testify.
During closing argument by the State, the State's Attorney made several comments which the defendant objected to as being improper and prejudicial. These remarks will be discussed later in detail.
At the conference on jury instructions the defendant submitted the following instruction:
"If a party fails to call a person who possesses knowledge about the facts in issue, and who is reasonably available to him, and who is not equally available to the other party, then you may infer that the testimony of that witness is unfavorable to the party who could have called him and did not."
The defendant tendered this instruction because the State failed to produce Cecelia Walls and Ronald Mallette, and refused to grant immunity to Dorshelle Sanders. The court declined to give the instruction.
The defendant, a black, first contends that he was denied his sixth amendment right to an impartial jury and his fourteenth amendment rights to due process and the equal protection of the law because the State used its peremptory challenges to exclude from jury service all of the available black jurors. The record shows that on the agreement of both parties, the court reporter was excused during the jury selection process. After 12 jurors and two alternates were chosen, the defense attorney moved for a mistrial on the ground that the jury selected did not constitute a representative cross-section of the community. He then injected the following facts into the record. The venire was composed of 35 jurors, nine of whom were black. Eight of the nine available black jurors were called into the jury box. The State used eight of its 10 peremptory challenges to strike these eight blacks from the jury panel. The State did not exercise any of its peremptory challenges against white jurors. The defense attorney then read into the record the names and occupations of the eight black jurors who were struck.
The trial court asked the State if it wished to respond to the defendant's motion for a mistrial. The State's Attorney said that he felt he had proper reasons for exercising the peremptory challenges as he did and denied being motivated by racism.
The court, relying upon Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, and People v. Butler (1970), 46 Ill.2d 162, 263 N.E.2d 89, denied the motion, stating that the defendant "has [not] made out a case for invidious discrimination in violation of the Fourteenth Amendment."
In Swain, the defendant claimed that his fourteenth amendment rights to due process and the equal protection of the law were violated by the prosecution's exercise of peremptory challenges to exclude the six blacks remaining on his final jury venire. The court rejected this claim and stated that to establish a fourteenth amendment violation a defendant must show more than that blacks were excused from his jury through the State's use of peremptory challenges. He must show a systematic pattern, over time, of excluding a particular racial group from jury service. In reaching this decision, the Swain court relied heavily on the fact that the reasons for exercising a peremptory challenge are not subject to examination. The court stated that "[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control." 380 U.S. 202, 220, 13 L.Ed.2d 759, 772, 85 S.Ct. 824, 836.
The Illinois courts> have repeatedly expressed agreement with Swain. See People v. Butler (1970), 46 Ill.2d 162, 263 N.E.2d 89; People v. Attaway (1976), 41 Ill. App.3d 837, 354 N.E.2d 448; People v. ...