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People v. Belton

OPINION FILED MARCH 22, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ERNIE BELTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS P. CAWLEY, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Defendant Ernie Belton was sentenced to five years in the penitentiary after his conviction by a jury of the offense of unlawful use of weapons in carrying a loaded firearm in a vehicle within five years of release from the penitentiary. (Ill. Rev. Stat. 1979, ch. 38, pars. 24-1(a)(10) and 24-1(b).) He appeals, contending that he was denied a fair trial (1) by the State's exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community and (2) by the prosecutor's final argument. We affirm.

Because no contention is made that defendant was not proved guilty beyond a reasonable doubt, the evidence need not be detailed at length.

At approximately 11:30 p.m. on February 13, 1980, police officers Fitzgerald and Strombeck were driving south on Wells Street in an unmarked car. They turned west onto Schiller Street. A grey Buick was being driven west directly in front of them. Defendant was in the front passenger seat, with Keith Belton, defendant's nephew, in the rear seat behind defendant. Leroy Mayfield was the driver. Defendant turned to look at the unmarked car.

Officer Fitzgerald observed the front passenger window go down and an arm extend from the window with a gun in his hand. When the emergency lights on the police car were activated, the person in the front passenger seat threw the gun. A loaded gun was recovered near the car. Officer Strombeck said that when he approached the car in which defendant was a passenger, the front passenger window was down and the rear window closed.

Defendant testified that he turned to look back because someone said the police were following them. While he was looking back, his nephew sitting behind him in the back seat rolled down the back window, stuck his hand out the window and pulled his hand into the car. Defendant did not see a gun thrown from the car. Defendant further testified that one of the police officers asked his nephew what he threw out the window and his nephew said, "Nothing. I didn't throw nothing out the window."

It was stipulated that defendant had been convicted of burglary February 6, 1978, and released from incarceration from Pontiac Correctional Center September 20, 1979.

We find this evidence sufficient to sustain the jury's guilty verdict.

We disagree with defendant's first contention that he was denied a fair trial by the State's exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community.

At the selection of the jury, the court reporter was excused after preliminary comments by the trial court to the prospective jurors. After nine members of the jury panel had been selected, defense counsel made the following oral motion:

"MR. GANT: I'm moving at this time that the jurors who have been selected that that entire venire be dismissed and that a new venire be brought up. I predicate my motion, Your Honor, on one very, very blatant, I feel anyway, abuse by the prosecution of its use of peremptory challenges. The prosecution has exercised, according to my records, peremptory challenges; of the 8, 7 have been used against either blacks or other minorities."

He also noted that "[t]here is nothing in the information that we were able to garner to indicate that these 7 minorities were excused for any other reason than race." The prosecutor argued that the State need not give any reason for the exercise of a peremptory challenge and that one black had been seated on the jury. Defense counsel countered that the fact that one black had been put on the jury did not vitiate the argument that there had been a systematic exclusion of blacks from the jury. He orally gave very brief biographic sketches of some of the challenged jurors and noted that some had backgrounds "that a prosecutor looks for in a juror." The court denied defendant's motion, stating that defense counsel had "not made a prima facie case that the State has systematically excluded blacks or in broader terms minorities."

After the selection of the jury had been completed, the following discussion took place prior to the State's opening statement:

"THE COURT: Mr. Gant, while your client is present, I wanted to make a comment regarding a motion you made regarding the systematic exclusion of minorities. I made no notes during yesterday's selection as to the race or background of the 10 people you excluded and approximately 12, 13 or 14 the Court excused. However, it did come to my mind when I brought the 9 jurors in the court room this morning, Jesus Quintana (phonetic spelling) ...


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