Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, Aaron Z. Gosberry, was found guilty of armed robbery by a jury. Defendant, who is black, contends that over his objections, the prosecutor systematically used peremptory challenges during the voir dire examination of the prospective jurors to exclude blacks from the jury solely because they were blacks. It is defendant's position that he was denied the type of fair trial guaranteed under the sixth amendment of the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross section of the community. Defendant also claims that the State failed to prove him guilty beyond a reasonable doubt. We reverse the conviction and remand the case for a new trial.
Eight blacks were available to be seated as jurors during the voir dire. Seven of the blacks were excluded by the prosecutor. Defense counsel objected after each exclusion, protesting that the prosecutor was systematically excluding blacks solely because they were blacks. Each objection was summarily overruled. The prosecutor then allowed the remaining black to become a juror. In total, the prosecutor exercised seven peremptory challenges, all of which were used against blacks.
• 1 The premise of the State's first argument is that a prosecutor has a right to exclude blacks from a jury during the voir dire solely because they are blacks. The State's argument is based on the same contentions that were flatly rejected in People v. Payne (1982), 106 Ill. App.3d 1034, 436 N.E.2d 1046. In Payne, we held that the State's systematic exclusion of prospective jurors solely because of their race is invidious and unconstitutional at any stage of the jury selection, i.e., from the time the general jury list is prepared by the jury commissioner until the jury is actually selected and sworn. (106 Ill. App.3d 1034, 1036-37, 436 N.E.2d 1046, 1048.) We based our decision in Payne on a defendant's right to an impartial jury under the sixth amendment and upon the roles of the State, the prosecutor and the court itself in a criminal trial. We conclude that the State's argument is untenable for the reasons stated in Payne.
Next, the State argues: "[T]he record demonstrates that the People acted without discrimination or systematic exclusion. First, the record is clear that the jury panel did include one black juror. Secondly, for at least two of the challenged black jurors, the reasons for exercising the peremptory challenges are evident from the cold record. Prospective juror Inez Wilson stated that one of her sons had been sent to the prison for carrying a gun. Prospective juror Barney Harrell stated that he had been a victim of a crime in the past." These contentions are without merit.
• 2 First, the State's contention that the record shows that it acted without discrimination or systematic exclusion because the jury included one black is the same argument the State made in Payne. In Payne, we stated:
"The State also argues that because one black was seated on the jury the State did not affirmatively deny defendant a fair cross section of the community on the jury. This argument is unavailing because this case involves the exclusion of all the black jurors by the State before the last available black juror was allowed to be seated. Systematic and affirmative racial exclusion of available black jurors by the State which results in only one black being seated as a juror is no less evil and no less constitutionally prohibited than the same procedure which results in the total exclusion of blacks. We are not unmindful that some attorneys may leave a token black on the jury after they are assured that there are no more blacks available to be seated. This type of practice does not lessen the unconstitutionality of the State's initial exclusion of blacks from the jury solely because they were blacks." (106 Ill. App.3d 1034, 1045, 436 N.E.2d 1046, 1054.)
The State's argument is no less specious here.
As to the State's second contention, we reviewed the "cold record" to determine the circumstances involving the State's exclusion of black prospective jurors Inez Wilson and Barney Harrell. The record shows that during the voir dire, Inez Wilson stated that she is married and has 12 children, one of whom, a son, had been in prison six years earlier for carrying a gun. The record contains no other facts concerning the incident involving her son. Barney Harrell stated that he works as a supervisor for Purolator and as a senior stockman for Commonwealth Edison. He has held these two jobs for 11 years. Two years prior to the trial, he left his wallet lying out at work, and someone stole his credit card from his wallet. This is the incident to which the State makes reference when it contends that it excluded Mr. Harrell as a juror because he had been the victim of a crime.
• 3 With regard to the State's reason for excluding Mr. Harrell, the record shows that several persons who became jurors had also been victims of crimes. During the voir dire, Mrs. Margaret Bureta stated that her car was broken into and its battery stolen six months prior to the trial. She was not excused by the prosecutor, and she became a juror. Miss Garrie Parks stated that her automobile was stolen about eight years ago, and it was never returned. She also stated that she has an aunt whose house was burglarized six years ago. She was not excused by the prosecutor, and she became a juror. Robert Houghton stated that his automobile was stolen in 1977. He was not excused by the prosecutor, and he became a juror. Mrs. Debra Genvilas stated that her home was burglarized four years ago. She was not excused by the prosecutor, and she became a juror. Under the circumstances, we conclude that although the State may have excused Inez Wilson for a reason other than her race, the State's contention that prospective juror Barney Harrell was excused because "he had been a victim of a crime in the past" is implausible and clearly untenable.
• 4 Although the State does not compare the backgrounds of the black prospective jurors who were excused by the State with the backgrounds of those persons who became jurors, we have made the comparison.*fn1 The record demonstrates that the blacks who were excluded are factually heterogeneous and that the single distinguishing characteristic that the excluded blacks share is their race. We believe that the facts and circumstances in this case demand the conclusion that it should have reasonably appeared to the trial court that the prosecutor was using peremptory challenges to systematically exclude blacks from the jury solely because they were blacks. At that stage, the trial court should have required the prosecutor to demonstrate, by whatever facts and circumstances existed, that blacks were not systematically excluded solely because they were blacks. The failure of the trial court to impose such a requirement on the prosecutor at that stage was error, and the error is of such magnitude that the conviction must be reversed and the case remanded for a new trial. People v. Payne (1982), 106 Ill. App.3d 1034, 1045-46, 436 N.E.2d 1046, 1054.
• 5 Although we base our decision in this case on Payne, we recognize that another division of this court, with one justice dissenting, has recently disagreed with Payne. (People v. Teague (1982), 108 Ill. App.3d 891.) Teague rejects Payne for three reasons. First, Teague expressly disagrees with the principle stated in Payne that "`a defendant is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross section of the community as the process of random draw and constitutionally acceptable procedures permit.'" (108 Ill. App.3d 891, 896.) Teague relies upon People v. Fleming (1980), 91 Ill. App.3d 99, 413 N.E.2d 1330, People v. Allen (1981), 96 Ill. App.3d 871, 422 N.E.2d 100, People v. Tucker (1981), 99 Ill. App.3d 606, 425 N.E.2d 511, People v. Lavinder (1981), 102 Ill. App.3d 662, 430 N.E.2d 243, and People v. Belton (1982), 105 Ill. App.3d 10, 433 N.E.2d 1119. These cases are discussed and distinguished in Payne. We continue to believe that the principle stated in Payne, but rejected in Teague, is sound and that "the State may not affirmatively frustrate this constitutional entitlement." 106 Ill. App.3d 1034, 1037, 436 N.E.2d 1046, 1048.
• 6 Next, Teague states: "If, as Payne holds, the State under the circumstances there posited has to show a basis for its peremptory challenges, then the peremptory challenge has been so effectively emasculated as to destroy its function * * *." (108 Ill. App.3d 891, 897.) We disagree. Payne merely holds that when it reasonably appears to the trial court that the prosecuting attorney is systematically excluding blacks from the jury solely because they are blacks, then the trial court should require the prosecutor to demonstrate that blacks were not being systematically excluded from the jury solely because they were blacks. Plainly, if the prosecutor seeks to peremptorily excuse people from jury service for any reason other than the fact that they happen to belong to a discrete group, then Payne has no applicability or relevance. All that Payne "effectively emasculates" is veiled State participation in racism, sexism, and religious and ethnic prejudices.
Teague next states: "Further, if the law in Illinois is to be the abolition of peremptory challenges as enunciated in Payne, the problem should be met forthrightly by the legislature by abolishing peremptory challenges to make all challenges challenges for cause and place their exercise in the discretion of the trial judge." (108 Ill. App.3d 891, 897.) However, Payne does not enunciate the abolition of peremptory challenges any more so than Teague. Nor does Payne enunciate the abolition of peremptory challenges any more so than Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, *fn2 which is relied upon in Teague. In both Payne and Swain, the courts> recognized that the trial court may control peremptory challenges if it appears to the trial court that the State is using peremptory challenges to violate the constitutional rights of the defendant. (See People v. Payne (1982), 106 Ill. App.3d 1034, 1043, 436 N.E.2d 1046, 1053 (discussing Swain).) Moreover, even Teague recognizes the fact that the trial court may control peremptory challenges when it states: "it is true that it is constitutional error to exclude a group as a group where it is shown that the group has been systematically prevented from jury service or on particular juries." (108 Ill. App.3d 891, 895.) We presume that this statement in Teague means that if it is shown to the trial court that the State is systematically excluding a group as a group from being on a particular jury, then the trial court should require the prosecutor to lay bare the ...