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People v. Rosa

OPINION FILED DECEMBER 30, 1982.

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

v.

FELIX ROSA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After trial by jury, defendant, Felix Rosa, was convicted of two offenses of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and sentenced to concurrent 22-year terms of imprisonment. He appeals contending that the trial court erred in (1) denying his motions to quash the jury panel and dismiss the indictment; (2) convicting him for two offenses of armed robbery on the basis of a single physical act; and (3) imposing excessive sentences.

A review of the record on appeal reveals that on December 10, 1980, at approximately 5:50 p.m. Luis Rosado (a co-defendant who is not a party to this appeal) walked into the Highland Park Ford dealership and informed one of its salesmen, William Caminiti, that he was considering the purchase of a van. Caminiti identified two vans (stock numbers T-114 and T-132) in which Rosado might be interested through the dealership stock index file. Caminiti obtained the keys to these vans and accompanied Rosado to the parking lot where the vehicles were located approximately 40 feet from one another.

Caminiti first directed Rosado to Van No. T-132 and allowed him to enter and examine it. While Rosado was so occupied, the defendant, Rosa, approached and also inquired of Caminiti about the purchase of a van. Caminiti advised Rosa he would be with him in a moment, and Rosa departed. Caminiti then showed Rosado Van No. T-114 and, after running its engine, the two men returned to the first van and also tested its engine. As they then walked back to the showroom, Rosado informed Caminiti that he wished to purchase the second van, T-114; they returned to it and Rosado started the engine. While Caminiti was explaining the features of the vehicle to Rosado, defendant Rosa ran up behind Caminiti holding something in his hand. Caminiti knocked Rosa's hand away from him whereupon Rosa pointed a pistol at Caminiti saying, "You almost got fucking blown away man" and put his right arm around Caminiti's neck. Caminiti was told to shut up and was forced to walk between the two men back to the first van, T-132, where he was told to lie face down in the back of the van and shut up or he would be "blown away." Rosa gave the pistol to Rosado and tied Caminiti's hands behind his back, and Rosado then hit Caminiti on the side of the head with the pistol.

Rosa went through Caminiti's pockets and took his wallet, watch and $50 in cash. He told Caminiti "you cheated us" and warned him not to move for five minutes or he'd be blown away; both defendants then left the van. Caminiti waited a few minutes then exited the van and ran back to the showroom where he was untied, and discovered that van T-114 was missing. The police were notified and a description of the missing van was broadcast over the police radio. Subsequently, the van and the two defendants were stopped on the Peterson Street exit of the Edens Expressway after a high-speed chase on the expressway involving multiple State and municipal police officers.

On December 17, 1980, defendant Rosa was charged by indictment with two counts of armed robbery, two counts of armed violence and one count each of kidnaping, aggravated kidnaping, aggravated battery, theft (under $150) and theft (over $150) in violation of sections 18-2(a), 33A-2, 10-1(a)(1), 10-2(a)(5), 12-4(b)(1) and 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2(a), 33A-2, 10-1(a)(1), 10-2(a)(5), 12-4(b)(1) and 16-1(a)). Prior to trial defendant filed motions to quash the jury panel and the indictment alleging generally that the system used to select the panel and petit jurors was discriminatory and resulted in a nonrepresentative panel. The motion contained no specific allegations of discrimination, nonrepresentation or prejudice nor was it supported by affidavit. At the hearing of the motion defendant offered no evidence in its support. On that basis, the motion was denied by the trial court.

After trial, the court directed verdicts for defendant on the counts for kidnaping and aggravated kidnaping and the jury returned verdicts of guilty on the remaining seven counts. The court subsequently denied defendant's motion for a new trial but, at the sentencing hearing, vacated all of the judgments against defendant except for the two offenses of armed robbery for which he was sentenced. Defendant did not file a motion to reduce or modify the sentences within 30 days of its imposition as is allowed by section 5-8-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(c)).

Defendant initially contends that the trial court erred in denying his motion to quash the jury panel and indictment, urged on the grounds that the system used in Lake County to select and impanel grand and petit jurors discriminated against minorities and classes of persons resulting in under-representation of those groups on the juries ultimately impaneled to defendant's prejudice.

• 1 It has long been recognized that the systematic exclusion of members of identifiable groups from grand or petit jury service, solely because of their membership in those groups, denies a defendant who is a member of such a group the equal protection of the law as guaranteed by the fourteenth amendment to the United States Constitution. (Castaneda v. Partida (1977), 430 U.S. 482, 51 L.Ed.2d 498, 97 S.Ct. 1272; Alexander v. Louisiana (1972), 405 U.S. 625, 31 L.Ed. 2d 536, 92 S.Ct. 1221; Whitus v. Georgia (1967), 385 U.S. 545, 17 L.Ed.2d 599, 87 S.Ct. 643; Hernandez v. Texas (1954), 347 U.S. 475, 98 L.Ed. 866, 74 S.Ct. 667; Carter v. Texas (1900), 177 U.S. 442, 44 L.Ed. 839, 20 S.Ct. 687.) The burden of proving selective discrimination against an identifiable group is upon the defendant. (Whitus v. Georgia (1967), 385 U.S. 545, 550, 17 L.Ed.2d 599, 603-04, 87 S.Ct. 643, 646; Hernandez v. Texas (1954), 347 U.S. 475, 480, 98 L.Ed. 866, 871, 74 S.Ct. 667, 671; People v. Powell (1973), 53 Ill.2d 465, 477-78, 292 N.E.2d 409, 416-17; People v. Blair (1974), 17 Ill. App.3d 325, 336, 307 N.E.2d 679, 687, appeal denied (1974), 56 Ill.2d 583.) Once a prima facie case of discrimination has been established the burden shifts to the prosecution to rebut the presumption of unconstitutional action by showing that permissible racially neutral criteria and procedures were employed. (Alexander v. Louisiana (1972), 405 U.S. 625, 631-32, 31 L.Ed.2d 536, 542, 92 S.Ct. 1221, 1226; Whitus v. Georgia (1967), 385 U.S. 545, 550, 17 L.Ed.2d 599, 603-04, 87 S.Ct. 643, 646.) There are two methods by which a prima facie case may be established by the defendant: (1) showing that the statutory jury selection procedure is racially nonneutral, or susceptible to abuse, on its face (Alexander v. Louisiana (1972), 405 U.S. 625, 31 L.Ed.2d 536, 92 S.Ct. 1221; Whitus v. Georgia (1967), 385 U.S. 545, 17 L.Ed.2d 599, 87 S.Ct. 643); or (2) the "rule of exclusion" which requires a showing that, over time, an identifiable group has been substantially underrepresented in jury service in comparison with their proportionate presence in the total population of the community. Castaneda v. Partida (1977), 430 U.S. 482, 51 L.Ed.2d 498, 97 S.Ct. 1272; Hernandez v. Texas (1954), 347 U.S. 475, 98 L.Ed. 866, 74 S.Ct. 667.

• 2 In Illinois, the procedures by which a jury panel may be challenged are provided in section 114-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-3):

"(a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. For good cause shown the court may entertain the motion after the voir dire has begun but such motion shall not be heard after a jury has been sworn to hear the cause.

(b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.

(c) If the motion states facts which show that the jury panel has been improperly selected or drawn it shall be the duty of the court to conduct a hearing. The burden of proving that the jury panel was improperly selected or drawn shall be upon the movant.

(d) If the court finds that the jury panel was improperly selected or drawn the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law." (Emphasis added.)

Failure of the motion to conform to the requirements of this section will preclude defendant's right to a factual hearing and the motion will be properly denied. People v. Perry (1980), 81 Ill. App.3d 422, 427-28, 401 N.E.2d 1263, 1268, cert. denied (1981), 451 U.S. 983, 68 L.Ed.2d 839, 101 S.Ct. ...


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