APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial held on July 21, 1977, defendant was convicted of murder and sentenced to 14 to 20 years in the penitentiary. The appeal filed by defendant's privately retained counsel was dismissed for want of prosecution on June 28, 1978. Counsel made a motion to withdraw as defendant's attorney on April 24, 1979, which was denied for lack of jurisdiction. The State Appellate Defender was substituted as defendant's attorney and moved to vacate the order dismissing the appeal, which was denied on August 27, 1979. In People v. Mims (1980), 82 Ill.2d 63, 66, 411 N.E.2d 215, the Illinois Supreme Court, in exercise of its supervisory authority, ordered that defendant's appeal to the appellate court be reinstated. The sole issue on appeal is whether defendant was denied her right to a fair trial by the State's exercise of its peremptory challenges, allegedly so as to exclude black women from sitting on the petit jury.
The record concerning the jury selection process is sketchy, particularly in the beginning, when only part of the proceedings were recorded. Defendant moved that since there were only 7 blacks on the 49-veniremen panel, the court should order the clerk to send up "at least 15 blacks." The court denied defendant's motion observing that 40 people were called up, of which 8 were black. No court reporter was present to record the voir dire examination of the individual prospective jurors and the exercise of the first 6 of the State's 10 peremptory challenges. Approximately halfway through the jury selection process, defendant moved that the entire venire be dismissed on grounds that it was tainted by the comments of an excused juror. The trial court denied defendant's motion but ordered that a court reporter record the rest of the proceedings, which was done.
Among these persons who were subject to voir dire examination were two blacks, Michael Evans and Louise Hardy. Evans stated that he was reluctant to serve on the jury, because "it is a murder trial and I don't want to have nothing to do with it." When the State moved to excuse Hardy and Evans, defendant objected to the exercise of the peremptory challenges to excuse the "two blacks." The State asserted that it was not attempting to exclude any group and that there were then already two blacks on the jury. The trial court denied defendant's motion, but questioned the State's motive:
"* * * [Y]ou are telling me now that you have no prejudice yet in almost every one [peremptory challenge] now it is getting to the point where it is strictly a black that you are excluding. * * * I can understand excluding Michael Evans, but I will be frank with you. If you continue in this vein, I am going to maybe take another position."
During the discussion on defendant's motion, the State noted that six of its eight challenges were used on blacks.
Later, the prosecution challenged the one remaining black woman on the venire, Linda Schurm, without asking her any questions, explaining that it did not want an "all-woman jury." The court again appeared skeptical of the State's motive, observing that it had used six of its eight challenges on blacks. At the end of a lengthy legal discussion, however, the court concluded that the presumption that the prosecution was employing the State's challenges to obtain a fair and impartial jury had not been rebutted, and the motion to challenge was allowed.
Because the sole question before the court pertains to the jury selection process, the evidence adduced at trial is not in issue and may be summarized in broader terms than usual; however, our examination of the entire record reveals that the jury's verdict was supported by the requisite quality and quantum of proof. Lavelle Jones, testified that on August 7, 1975, following earlier telephonic communication, defendant entered Jones' house carrying a gun, approached her husband, the victim Richard Mims, and said, "You lied. It's all over." Defendant fired two shots into her husband from a distance of three feet. The victim "stumbled and fell" and was shot by defendant four more times. Cleo Jones testified that on the day in question the victim came to his home to tell him that he had a job "lined up" for Jones. Later, defendant entered his house stating, "This is it between I and you" and started shooting the victim. Defendant kept on shooting even after the victim fell. Officer Fred Schulz testified that at approximately 1:15 a.m. on August 7, 1975, he received a call to go to Jones' home. When he arrived, he asked defendant, "what happened?" Defendant replied, "Yeah, I shot him." The testimony of Officer Robert Bresnahan concerning the incident substantially corroborated Schulz' and need not be set forth.
The defense presented the following evidence. Alma Smight testified that in 1971 the victim and defendant were in an alley together when the former stated in a loud voice, "I will kick your ass." Later that night, she saw defendant's hand bleeding. Lucretia Hasegawa, defendant's sister, testified that she saw bruises on defendant's face more than 10 times, and that once she saw the victim hit and beat defendant. William Ozenborne, James Cooley, Alma Smith and Ardrene Thomas all testified that they had seen bruises on defendant's face several times. Cooley further testified that he had heard numerous "arguments and fighting" between victim and defendant.
Defendant testified that during her 11-year marriage with the victim she became an alcoholic. She described several occasions when her husband hit or bit her. Between noon of August 6 and the early morning hours of August 7, she consumed an estimated 18 to 24 cans of beer. When she went with a gun to the Jones' house, Val opened the door and started hollering and screaming. After hearing some "popping," she walked out of the house but returned a short time later to call the police. On cross-examination, defendant testified that after she entered Jones' house, her husband began walking toward her with a glass in one hand and his other hand up in the air. She did not shoot her husband nor did she hear a gunshot. She did not know what her husband was doing immediately prior to the "first firecracker."
During rebuttal testimony, Officer John Yucaitis testified that he spoke briefly with defendant at the scene of the crime and that in his opinion defendant was not drunk; she did not stumble or slur her speech. On cross-examination he stated that he had seen people under the influence of alcohol who neither staggered nor slurred their speech.
The jury, which consisted of eight women and four men, of whom two were blacks, found defendant guilty of murder.
• 1, 2 Defendant contends that she was denied her right to a fair trial because of the State's use of its peremptory challenges to exclude black women from the petit jury. Defendant relies on Peters v. Kiff (1972), 407 U.S. 493, 33 L.Ed.2d 83, 92 S.Ct. 2163, and Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, to support her claim under the Federal Constitution. In Peters, the Supreme Court addressed the question of whether a white defendant had standing to attack the grand or petit jury selection process where the claim is that blacks were systematically excluded from jury service. Since the standing of defendant is not in issue in the instant case, Peters is inapposite. In Swain, the Supreme Court held that, in light of the purpose of the peremptory system, the Constitution does not require an examination into the prosecutor's reasons for the exercise of the State's challenges. The presumption in any given case is that the State is using its challenges to obtain a fair and impartial jury to try the case; this presumption is not overcome by allegations that all blacks were excused by the State's peremptory challenges. (380 U.S. 202, 222, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837.) The State was held to have constitutionally exercised its peremptory challenges to remove six blacks, thereby leaving an all-white jury; however, the systematic use of peremptory challenges against Negroes over ...