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People v. Williams

OPINION FILED MAY 27, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

HERNANDO WILLIAMS, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. James Strunck, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 30, 1983.

After his pretrial motions had been denied, Hernando Williams changed his plea to guilty in the circuit court of Cook County to charges of murder, armed robbery, rape and aggravated kidnaping. The pleas were accepted and judgment was entered upon them. The State then asked for the death penalty, and after a bifurcated sentencing proceeding before a jury and the judge who had accepted the pleas, the defendant was sentenced to death on the murder conviction. He was sentenced to concurrent terms of 30 years for armed robbery and aggravated kidnaping. He was sentenced to 60 years for rape, but that sentence was ordered to run consecutively to a prior 30-year sentence for rape. The circuit court denied a motion by the defendant to vacate the pleas of guilty, and the defendant has taken a direct appeal to this court under the Constitution of Illinois (Ill. Const. 1970, art. VI, sec. 4(b)) and under our Rule 603 (73 Ill.2d R. 603).

According to testimony given at the sentencing hearings and at an earlier motion to suppress statements of the defendant, the victim, Mrs. Linda Goldstone, on March 30, 1978, was employed at Northwestern Memorial Hospital in Chicago as an instructor in the Lamaze method of childbirth. On that evening, as she was alighting from her car in the vicinity of the hospital, she was approached by the defendant and robbed at gunpoint. He made her undress from the waist down. He then forced her into his car and, it appears, took her to a shop owned by his father. There he bound her hands and feet.

He then forced her into the trunk of his car. With Mrs. Goldstone in the trunk, the defendant picked up his sister at work and drove her home. He then drove the victim to a motel, forced her inside and raped her.

On the next day, with Mrs. Goldstone bound and locked in the trunk of the car, the defendant appeared at a suburban court where charges of aggravated kidnaping, rape, and armed robbery were pending against him. The case was continued, and the defendant then drove to visit a friend, Nettie Jones, at her apartment. While he was there, people of the area heard cries for help coming from the trunk of his auto. Someone notified the police of the incident. The defendant drove away from a crowd that had gathered and proceeded to a tavern where he visited other friends.

Early that evening, the defendant checked into another motel. He forced Mrs. Goldstone into the motel and again raped her. Later, he forced her back into the trunk and picked up his niece at a friend's house and drove the niece home. As he had done the day before, he drove his sister home from work and spent the evening visiting various taverns with friends.

In the meantime, police were searching for the defendant's car. The victim's husband, Dr. James Goldstone, a physician, after learning that his wife had not appeared for class that evening, notified the police of her absence. The victim's car was found by Northwestern University security officers. Early the following morning, Dr. Goldstone received a phone call from his wife in which she told him that she would be home soon. He heard a voice in the background say, "Shut up bitch, tell him you'll be home in about an hour." The victim asked Dr. Goldstone if he had called the police, and he told her to tell the man whose voice he had heard that he had not informed the police.

Officers investigating the incident at Jones' apartment obtained the license number of the car and learned that the defendant had visited Jones. The police searched the area for the auto without success and periodically watched the defendant's home, but the car was not located.

On April 1, at 6 a.m., the defendant released the victim from the trunk of the auto. He gave her $1.25 and instructed her to take a bus home and not to call the police. He then drove off. The victim, ignoring his instructions, ran to the porch of a nearby house for help. The person who came to the door refused to allow her to enter, but he did call the police. The defendant, who had only driven around the block to see whether his instructions would be obeyed, returned and ordered the victim off the porch. He then took her to an abandoned garage and killed her, shooting her in the chest and head. There was medical evidence that the victim had been beaten once or more during her captivity.

The defendant was arrested at his home that afternoon while he was washing the trunk of his car. Early the next morning he gave a statement that was transcribed by a court reporter. In the statement, the defendant admitted to kidnaping, robbing and shooting the victim.

A number of the contentions of the defendant concern the constitutionality of the death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9-1). The issues raised have been decided adversely to him in recent holdings of this court, and there is no necessity of discussing them in detail now. This court has a number of times held that the grant of discretion to the prosecutor under the statute to ask for the death penalty is not unconstitutional. (E.g., People v. Davis (1983), 95 Ill.2d 1, 28; People v. Szabo (1983), 94 Ill.2d 327, 351.) Too, we have held that there is no unconstitutional vagueness in the statutory provision that the court sentence the defendant to death if the jury determines that "there are not mitigating factors sufficient to preclude the imposition of the death sentence" (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(g)), or in the provision that the absence of a "significant history of prior criminal activity" (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)(1)) is a mitigating factor. People v. Lewis (1981), 88 Ill.2d 129, 144-46.

This court also has held that the sentencing standards in the death penalty statute, which provide for the weighing of mitigating factors against aggravating factors, do not offend due process. In People v. Brownell (1980), 79 Ill.2d 508, 528-34, this court rejected a contention that the statute is constitutionally inadequate because it does not set out specific standards as to the weight to be given to the aggravating and mitigating factors. Because the sentencing process upheld in Brownell is a weighing process, we have judged that there is no need to impose a specific burden of proof upon the prosecution to show the absence of mitigating factors. (People v. Free (1983), 94 Ill.2d 378, 421.) We have also rejected the contention that the statute is unconstitutional in permitting the jury to consider in the second phase of the sentencing proceeding non-statutory aggravating factors (People v. Kubat (1983), 94 Ill.2d 437, 504), and we have distinguished Henry v. Wainwright (5th Cir. 1981), 661 F.2d 56, cert. allowed and cause remanded (1982), 457 U.S. 1114, 73 L.Ed.2d 1326, 102 S.Ct. 2922, which the defendant here cites for his argument to the contrary. People v. Davis (1983), 95 Ill.2d 1, 38; People v. Free (1983), 94 Ill.2d 378, 427.

Too, we have rejected the argument that the sentencing scheme is defective in failing to provide procedures for comparative review. That review would entail providing for the collection of data in all murder cases in this State for a comparison between cases in which the death penalty has been imposed and those in which it was not. (People v. Kubat (1983), 94 Ill.2d 437, 502-04.) Further, we have judged that the statute does not violate article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 11), which provides that all penalties be determined in accordance with the seriousness of the offense and with the goal of restoring the offender to useful citizenship. People v. Davis (1983), 95 Ill.2d 1, 28; People v. Free (1983), 94 Ill.2d 378, 420-21; People v. Szabo (1983), 94 Ill.2d 327, 351; People v. Gaines (1981), 88 Ill.2d 342, 380-82.

The defendant also contends that his rights under the sixth amendment (U.S. Const., amend. VI) were violated by the trial judge's refusal to allow him to serve as co-counsel. Prior to entering the plea of guilty, the defense presented a motion asking that the defendant be allowed to serve as co-counsel at trial. The defendant said that he wanted "to represent [himself] with counsel." According to his attorney, the defendant desired to conduct some parts of the trial himself. He did not want to appear pro se with a lawyer in an advisory role. The court denied the motion and required the defendant to choose between representing himself or being represented by counsel. The defendant chose to have counsel represent him.

The State contends that this question is moot and has been waived, because the defendant did not go to trial. He pleaded guilty. Whether the issue is moot or not it is clear that it has no merit. In People v. Ephraim (1952), 411 Ill. 118, a defendant claimed that his right to defend himself pro se was denied by a judge's appointment of counsel in his behalf. The trial court had initially granted the defendant leave to conduct his own defense when the public defender who had been representing him withdrew from the case. Later, however, the trial court, on its own motion, appointed counsel, who represented the defendant at pretrial hearings, at trial, and in post-trial motions.

This court's review of the record showed that the defendant had accepted counsel without making any objection. The acceptance of counsel, this court judged, was a waiver of the right to appear pro se. It explained:

"An accused has either the right to have counsel act for him or the right to act himself. As pointed out in United States v. Mitchell [(2d Cir. 1943), 137 F.2d 1006], it is obvious that both of those rights cannot be exercised at the same time. It follows that to allow a defendant to avail himself to the hilt of his right to counsel, then allow him to plead his right to defend himself when the trial conducted by counsel produces an unsatisfactory result, would give far too great a chance to delay trial and to otherwise embarrass effective prosecution of crime. (See United States v. Gutterman [(2d Cir. 1945), 147 F.2d 540].) As indicated in the Mitchell case, a defendant must be required to make his election between the two rights at the proper time and in the proper manner." People v. Ephraim (1952), 411 Ill. 118, 122.

There is no reason to depart from the holding in Ephraim that a defendant has no right to both self-representation and the assistance of counsel. Federal courts> have held that no such right exists under the United States Constitution (United States v. Halbert (9th Cir. 1981), 640 F.2d 1000, 1009; United States v. Daniels (5th Cir. 1978), 572 F.2d 535, 540), and the provision in our constitution regarding the right of self-representation and the assistance of counsel is identical in relevant part to the corresponding provision in the constitution in effect when Ephraim was decided. Compare Ill. Const. 1970, art. I, sec. 8, with Ill. Const. 1870, art. II, sec. 9.

The defendant argues that his plea of guilty was not entered voluntarily and intelligently. Due process requires that a plea of guilty not be accepted unless it appears from the record that the plea was made knowingly, intelligently and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) To satisfy the requirements of due process, our Rule 402 (73 Ill.2d R. 402) provides in part:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him."

The defendant contends that his right to due process was violated because when he entered his plea of guilty he "did not and could not have known the maximum penalty that his plea could subject him to."

This contention is simply not supported by the record. At the time the defense announced that the defendant wanted to change his initial plea of not guilty to guilty, the court informed the defendant of the charges against him. The court then said: "I must advise you further that you can be tried before this court or before a jury. If you are found guilty of murder, under the circumstances of which case [sic] the death penalty could be imposed." The court also informed the defendant of the prison terms he could be given for the other offenses.

The prosecutor requested, "I ask that the defendant also be admonished as to the amount of years he could get on the charge of murder and that he might be eligible for a life imprisonment in addition to the death penalty, your Honor, as a possible penalty * * *." The court then stated, "I must also advise you [that] in addition to the possibility of the death penalty under the Code as it exists in the State of Illinois, there is a further provision for the imposition of sentence for the crime of murder wherein it is provided the minimum term to be imposed shall be not less than 20 years and not more than 40 years." The court advised the defendant that by pleading guilty he was waiving his right to have a jury determine the question of guilt. The defendant signed a waiver stating that he was foregoing his right to a jury trial and that he was pleading guilty to the charges.

It is clear that the defendant was advised of the possibility that the death penalty could be imposed. The defendant contends that the judge's language admonishing him that he could receive the penalty after being found guilty of murder implied that the death penalty could be imposed only after a trial, not upon a plea of guilty. This contention is not convincing. An admonition of the court must be read in a practical and realistic sense. The admonition is sufficient if an ordinary person in the circumstances of the accused would understand it to convey the required warning. (People v. Krantz (1974), 58 Ill.2d 187, 193; People v. Doyle (1960), 20 Ill.2d 163, 167.) The defendant could not reasonably have understood that by waiving the determination of guilt by the trial court or by a jury he would avoid the imposition of the death penalty.

Moreover, there is no doubt that the defendant was aware that he was eligible for the death penalty even before he announced his intention to change his plea to guilty. Months before the plea of guilty was entered the defense filed a motion asking the State to disclose whether the death penalty would be sought. In open court, and in the presence of the defendant, the State answered that it need not make an announcement at that time. Too, on the morning that the plea of guilty was entered, the defense presented a written motion to compel disclosure of the aggravating factors the prosecution would introduce at a death penalty hearing. The defendant, prior to acceptance of his plea, acknowledged to the judge that his attorneys had informed him of the consequences of pleading guilty.

Another contention made by the defendant is that his sentence must be vacated because in reaching its verdict the jury relied upon an aggravating factor not in evidence. One of the statutory aggravating factors relied upon by the prosecution was that "the murdered individual was killed in the course of another felony." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6).) The other factor relied upon was that "the murdered individual was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness or possessed other material evidence against the defendant." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(7).) Here, as he did in the trial court, the defendant contends that reliance upon the second factor should not have been permitted.

The defendant bases this argument upon People v. Brownell (1980), 79 Ill.2d 508. There the defendant was found guilty of murder, aggravated kidnaping and rape, and was sentenced by the court. The court found that under the evidence two aggravating factors were present: (1) that the victim was killed in the course of two other felonies, (2) that the victim was an eyewitness against the defendant. Finding no mitigating factors to preclude the sentence of death, the court sentenced the defendant to death.

According to Brownell's written statement admitted at trial, the defendant had picked up the victim, Louise M. Betts, when she was hitchhiking. Armed with a knife, the defendant drove to an open area and raped the victim. The defendant then attempted to strangle her, but she was able to get up and run from him. The defendant caught and strangled her.

This court judged that the second aggravating factor found by the court, that the victim was an eyewitness against the defendant, was not established. It pointed out that the trial judge apparently made the finding that the victim was an eyewitness simply on the ground that the victim could have later testified against the defendant as to the aggravated kidnaping and rape. This court explained that while the circumstances met the literal requirements of the aggravating factor, the General Assembly must not have intended that aggravating factor to be applied to such a case. The court said:

"Otherwise, were we to adopt the trial court's finding, this aggravating factor could apply in every prosecution for murder where another offense contemporaneously occurs because the victim could have been a witness against the defendant. Or, even more broadly, this aggravating factor could apply to every prosecution for murder since every victim, obviously, is prevented from testifying against the defendant. We do not think the General Assembly intended the death penalty to be applied in every murder case, and, if it did, the General Assembly could certainly find a more direct way to express its intent than through this aggravating factor." (People v. Brownell (1980), 79 Ill.2d 508, 526.)

This court concluded that the General Assembly must not have intended the aggravating factor to be applied to a victim who was, or who may be, a witness as to the offenses in the course of the murder. Instead, it must have been the legislature's intent "to include situations where, during an investigation or prosecution of a separate offense which has previously taken place, a witness is killed in an attempt to stymie the investigation or prosecution." 79 Ill.2d 508, 526.

We think that the circumstances here are sufficiently different from those in Brownell to permit us to reach a different conclusion. Here, the evidence showed that after kidnaping and raping the victim, the defendant set her free with instructions to go directly home and not to call the police. She did not obey, however, and went to a house for help. The owner of the house told her he would call the police for her and he did so. The defendant was actually secretly watching her, and he then took her off and murdered her. The police were on their way to the scene in response to the resident's phone call at the time of the killing.

By his own admission, the defendant acted as he did because he knew Mrs. Goldstone was going to report the crimes to the police. A police investigator testified to a statement made by the defendant:

"He said all right, that he would talk, that he didn't want to hurt Mrs. Goldstone, that he intended to leave her go, and that he in fact let her go on her promise that she would not go to the police. When he saw her go up to the door at 104th and Maryland, he realized there was no way that she wasn't going to go to the police."

In a statement transcribed by a court reporter, the defendant said:

"I drove further up the way on the same street and I got out of my car and I walked around the corner on 104th Street and I could see up to the next corner, which is Maryland. I saw her on somebody's porch and she was talking to somebody, you know, call the police, you know, this and that, whoever she was talking to."

Under these circumstances, the jury could have found both that the murder was committed "in the course" of the other felonies, and that the victim was an eyewitness. There is no significant difference between the circumstances here and a situation in which a defendant kidnaps and rapes the victim, sets her free, and at a later time kills her while she is on her way to testify against him. The latter situation clearly is within this court's understanding of the statute considered in Brownell. We do not see why the General Assembly would not have intended the circumstances here to be within the statutory factor. The legislature's clear concern, to protect persons who could assist in the apprehension and prosecution of the accused (see Remarks of Senator Knuppel, debate of amendment 3 to H.B. 10, 80th Gen. Assem., June 1, 1977, at 21-25), is served by such an interpretation.

The defendant's next argument concerns the State's exercise of peremptory challenges. Here the victim and most of the prosecution's witnesses were white and the defendant was black. According to a motion filed by the defendant to discharge the jury selected, 28 of the 130 prospective jurors examined and excused during the voir dire examination were black. Fifteen of the prospective black jurors were excused for cause on the State's motion and two were excluded for cause on the defendant's motion. The State used 11 peremptory challenges to exclude the other blacks.

The defendant argued in his motion that his rights under the sixth and fourteenth amendments were violated by the State's exercise of the peremptory challenges. He contends that the court erred by not requiring the prosecution to show a justification, as the defendant puts it, for the peremptory challenges other than that of race.

The defendant's briefs in this court in addition contain statements regarding the composition of 43 juries in recent capital cases in this State. Over half of the juries were all white. Most of the rest of the juries contained only one black. How many peremptory challenges were exercised by the defense and by the State is not indicated. There are no other materials to illustrate that the State has regularly and systematically through the exercise of peremptory challenges excluded blacks or other minorities in case after case. None of these materials, it would appear, were presented to the trial court.

In People v. Davis (1983), 95 Ill.2d 1, we rejected a contention by the defendant that the State's exercise of peremptory challenges which resulted in an all-white jury deprived the defendant of a fair and impartial jury. We noted that the contention was contrary to Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, in which the Supreme Court held that an exercise of peremptory challenges which resulted in the selection of a jury composed of white jurors did not of itself show a constitutional violation. Under Swain, a constitutional issue of equal protection could not arise unless there was a systematic and purposeful exclusion of blacks because of race from juries in case after case. 380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837.

We noted too in Davis that though two States have not followed Swain when interpreting provisions of their constitutions (Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L.Ed.2d 110, 100 S.Ct. 170; People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890), we would adhere to the Supreme Court's view.

The defendant here cites another decision, in which the exclusion of blacks through the use of peremptory challenges was held to be a violation of Federal constitutional law. That case, People v. Payne (1982), 106 Ill. App.3d 1034, was decided by the third division of the First District of the appellate court. It was held that the use of peremptory challenges by the State to exclude blacks from a jury during voir dire because they are black is a violation of the defendant's right to a jury drawn from a fair cross section of the community. The Payne court relied upon Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692, in which the Supreme Court held that it is fundamental to the sixth amendment guarantee of an impartial jury that "the defendant in a criminal trial [have] the opportunity to have the jury drawn from venires representative of the community." (419 U.S. 522, 537, 42 L.Ed.2d 690, 702, 95 S.Ct. 692, 701.) The court in Taylor judged that the Louisiana jury system violated this fair-cross-section requirement because under the system a woman would not be selected for jury service unless she had previously filed a written declaration expressing her desire to serve as a juror, which system resulted in women being called for jury service in grossly disproportionate numbers considering the number of eligible women in the community.

The court in Payne believed that the use of peremptory challenges in particular cases to exclude members of any discrete group because of their group affiliations also was invalid, because otherwise "the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges." (People v. Payne (1982), 106 Ill. App.3d 1034, 1037.) The Payne court said that Swain was not controlling in the circumstances because in Swain the defendant's challenge was based upon the equal protection clause in the fourteenth amendment, not upon the sixth amendment. The Payne court noted that Swain was decided before the Supreme Court held that the sixth amendment rights relating to jury trials were applicable to the States, and before the court in Taylor held that the fair-cross-section requirement was a guarantee of the sixth amendment. 106 Ill. App.3d 1034, 1040-43.

The division of the appellate court that decided Payne has followed its decision in subsequent cases. (People v. Gilliard (1983), 112 Ill. App.3d 799; People v. Gosberry (1982), 109 Ill. App.3d 674.) Payne has been considered and rejected, however, by two other divisions of that court. People v. Newsome (1st Dist., 2d Div. 1982), 110 Ill. App.3d 1043; People v. Teague (1st Dist., 1st Div. 1982), 108 Ill. App.3d 891.

Payne does not satisfactorily meet the questions which must be addressed in considering the problem.

The Supreme Court in Swain concluded that the importance of the peremptory challenge in obtaining an unbiased jury justified its use in particular cases against members of individual groups based on their group affiliations. The court stated:

"In providing for jury trial in criminal cases, Alabama adheres to the common-law system of trial by an impartial jury of 12 men who must unanimously agree on a verdict, the system followed in the federal courts> by virtue of the Sixth Amendment. As part of this system it provides for challenges for cause and substitutes a system of strikes for the common-law method of peremptory challenge. Alabama contends that its system of peremptory strikes — challenges without cause, without explanation and without judicial scrutiny — affords a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial. This system, it is said, in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes. Based on the history of this system and its actual use and operation in this country, we think there is merit in this position." Swain v. Alabama (1965), 380 U.S. 202, 211-12, 13 L.Ed.2d 759, 767-68, 85 S.Ct. 824, 831.

The court then traced the history of the peremptory challenge and found that it had "very old credentials." (380 U.S. 202, 212, 13 L.Ed.2d 759, 768, 85 S.Ct. 824, 831.) Its function, the court explained, is to eliminate extremes of partiality on both sides and to assure the parties that the jurors will decide the case on the evidence alone. The availability of peremptories, the court pointed out, permits counsel to ascertain the possibility of bias through probing questions at voir dire, and it removes the fear of arousing a juror's hostility through examination and challenge for cause. The court also noted that "[a]lthough historically the incidence of the prosecutor's challenge has differed from that of the accused, the view in this country has been that the system should guarantee `not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.'" 380 U.S. 202, 220, 13 L.Ed.2d 759, 772, 85 S.Ct. 824, 835, quoting Hayes v. Missouri (1887), 120 U.S. 68, 70, 30 L.Ed. 578, 580, 7 S.Ct. 350, 351.

The court concluded:

"The 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. * * * It is often exercised upon the `sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another' [citation], upon a juror's `habits and associations' [citation], or upon the feeling that `the bare questioning [a juror's] indifference may sometimes provoke a resentment' [citation]. It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. It is well known that these factors are widely explored during the voir dire, by both prosecutor and accused [citations]. This Court has held that the fairness of trial by jury requires no less. [Citation.] Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.

With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. * * *

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case." 380 U.S. 202, 220-22, 13 L.Ed.2d 759, 772-73, 85 S.Ct. 824, 836-37.

We consider that the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692. The court in Taylor held that it is fundamental to the sixth amendment right to a jury trial that the selection of a petit jury be from a representative cross section of the community. The issue, as the court put it, was, "whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment's guarantee of an impartial jury trial in criminal prosecutions." 419 U.S. 522, 526, 42 L.Ed.2d 690, 696, 95 S.Ct. 692, 696.

There was no retreat in the Taylor opinion from the view that it is an essential part of our system of trial by an impartial jury that both sides be allowed in particular cases to exercise peremptory challenges on any ground they select. It appears that the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury. This is in harmony with the suggestion in Swain that the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue. (380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837.) Moreover, the limited character of the Taylor holding is clear from the following statement, which appears at the conclusion of the opinion:

"It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition [citation]; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." 419 U.S. 522, 538, 42 L.Ed.2d 690, 702-03, 95 S.Ct. 692, 702.

The Court of Appeals of New York recently rejected a request that it no longer follow the holding of the Supreme Court in Swain. The court made clear its understanding that the holding in Swain had not been affected by Taylor:

"The issue of minority representation on criminal juries has been the subject of several decisions by the Supreme Court. These decisions draw a critical distinction between the jury pool, which is the group of prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that is ultimately chosen to serve. The Sixth Amendment requires that the jury pool be selected from a representative cross section of the community (Taylor v. Louisiana [(1975)], 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692), and distinctive groups in the community may not be systematically excluded from the pool. Once the jury pool is selected, however, prospective jurors may then be excluded through the exercise of cause challenges and peremptory challenges." (People v. McCray (1982), 57 N.Y.2d 542, 545, 443 N.E.2d 915, 916-17, 457 N.Y.S.2d 441, 442-43, cert. denied (1983), 461 U.S. ___, 77 L.Ed.2d 1322, 103 S.Ct. 2438.)

Even the court in People v. Wheeler (1978), 22 Cal.3d 258, 284-85, 583 P.2d 748, 767, 148 Cal.Rptr. 890, 908, which we referred to earlier, recognized that if the Supreme Court were presented with the issue we are considering in terms of the sixth amendment fair-cross-section requirement, the court probably would not decide the question differently than it did in Swain.

Parenthetically, we would observe that since it was followed in Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, Wheeler has been followed in few instances. (E.g., State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716.) Most courts> have declined to follow it (State v. Stewart (1979), 225 Kan. 410, 591 P.2d 166; Lawrence v. State (1982), 51 Md. App. 575, 444 A.2d 478, aff'd (1983), 295 Md. 557, 457 A.2d 1127; State v. Sims (Mo. Ct. App. 1982), 639 S.W.2d 105; Commonwealth v. Henderson (1981), 497 Pa. 23, 438 A.2d 951; State v. Ucero (R.I. 1982), 450 A.2d 809; State v. Grady (1979), 93 Wis.2d 1, 286 N.W.2d 607; see People v. McCray (1982), 57 N.Y.2d 542, 443 N.E.2d 915, 457 N.Y.S.2d 441, cert. denied (1983), 461 U.S. ___, 77 L.Ed.2d 1322, 103 S.Ct. 2438 (not mentioning Wheeler but rejecting the Wheeler approach); cf. Doepel v. United States (D.C. 1981), 434 A.2d 449, cert. denied (1981), 454 U.S. 1037, 70 L.Ed.2d 483, 102 S.Ct. 580 (judging Swain dispositive)). Two of the courts> expressly criticized Wheeler as effectively eliminating the peremptory challenge as a useful tool in assuring an impartial jury. Commonwealth v. Henderson (1981), 497 Pa. 23, 438 A.2d 951; State v. Grady (1979), 93 Wis.2d 1, 286 N.W.2d 607.

There has been criticism of the reasoning of the Wheeler court. (See S. Saltzburg & M. Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md. L. Rev. 337, 359-60 (1982).) It has been observed that Wheeler "has found surprisingly little support" and that "the overwhelming majority of courts> still apply Swain's systematic exclusion test." Comment, The Sixth Amendment: Limiting the Use of Peremptory Challenges, 16 J. Mar. L. Rev. 349, 358 (1983).

Another contention of the defendant is that there was error in the excusing for cause of certain jurors. In Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, the Supreme Court held that prospective jurors could not be excused for cause simply because they had scruples against the infliction of the death penalty, or voiced general objections to capital punishment. The court did not hold improper, however, the exclusion of jurors who made it clear that they would automatically vote against the imposition of the death penalty regardless of evidence presented to them. The Supreme Court has not deviated from the rule in Witherspoon. The State can "exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths." Adams v. Texas (1980), 448 U.S. 38, 48, 65 L.Ed.2d 581, 592, 100 S.Ct. 2521, 2528.

The defendant claims that the exclusion of 12 prospective jurors was in violation of Witherspoon. Our review of the record satisfies us that none of those jurors was excluded simply for expressing general objections to the death penalty.

Contrary to the defendant's contentions, the exclusion of four of the 12 jurors had no reference to the death penalty. Mrs. Jean Samp was not challenged by the State; she was excused at her own request. She believed in capital punishment but she told the court that she had a strong unwillingness to play God as a juror. She said that she honestly felt that she could not be an unbiased juror, and that she would be partial to one side. The court excused her after ascertaining that she could not lay aside her personal opinions and render an impartial verdict on the evidence. Clearly a trial court can excuse a juror who states that she cannot be impartial. E.g., People v. King (1973), 54 Ill.2d 291.

Luella Kentris was excused not because of scruples against the death penalty, but because the court judged that she lacked capacity to understand her duties as a juror. She gave contradictory answers, and insisted that she would presume that the defendant was innocent despite his plea of guilty. The prospective juror's obvious confusion during questioning justified the court's statement, "I am not aware that she understood any of anyone's questions, * * * [or] the nature of the proceedings, despite the fact that it was explained to her by each attorney and by the court, and I'm not aware whether or not she comprehended what was occurring."

Joan Carter was also excused for reasons other than her feelings as to the death penalty. She was not asked about her attitude in that respect. She did state, though, that she did not know whether she could apply the law as instructed in instances where she disagreed with the law. If the law conflicted with her "inner feelings," she said, she would follow her feelings.

Another juror, Lovell Wilkinson, was excused after stating that he could not fairly and impartially serve as a juror. He, in fact, believed in the death penalty, but was upset that it was not applied in every murder case after a finding of guilt.

The restriction upon the exclusion of jurors expressed in Witherspoon was not applicable to the above-named jurors. Witherspoon does not prohibit the exclusion of jurors who state that they will not be able to follow the law and render an impartial verdict based on the evidence. Adams v. Texas (1980), 448 U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521.

The other jurors were properly excluded for cause. They did express views against capital punishment that would require them, they said, to vote against the death penalty whatever the evidence presented to them might be. Hereafter is the relevant interrogation of these jurors.

Juror Phillip Smith:

"Q. [Prosecutor]: Okay, do you have any conscientious or religious scruples against the imposition of the death penalty, sir?

A. Yes, I do.

Q. You will be against applying that, is that correct?

A. Yes.

Q. No matter what the evidence says, in other words, right?

A. Yes.

Q. [Defense Counsel]: Mr. Smith, the attitude you have about the death penalty, is that to the extent that any kind of a case, no matter how severe or how brutal it is?

A. Yes.

Q. [Defense Counsel]: Can you think of any crime that may come out of the neighborhood that you live in that may be so brutal that the death penalty might be appropriate?

A. No."

Juror Lois Marquez:

"Q. [Prosecutor]: * * * Do you, sir, have any conscientious or religious scruples against the imposition of the death penalty in a proper case?

A. I don't believe in capital punishment.

Q. [B]ecause of your belief, do you believe that you could never impose capital punishment?

A. I don't think I could.

Q. So what you are saying is that no matter what evidence would be shown to you, you couldn't impose the death penalty, yes or no?

A. No, I couldn't."

Juror William A. Occomy told defense counsel that he did not consider that he was qualified to serve as a juror in a sentencing proceeding.

"Q. [Defense Counsel]: * * * [C]an you promise me that you will follow the law as the judge instructs you to do so and can you put aside the feeling that this decision is one that makes you certainly uncomfortable, one that you would prefer not to do?

A. Frankly speaking, no.

Q. You don't feel you can follow the law as the judge gives it to you?

A. Frankly, well, let me put it this way, I guarantee you now, my name will never be on that piece of ...


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