Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Aubrey Kaplan, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County Stanley Payne was found guilty of three counts of aggravated battery and one count of armed violence in connection with the shooting of Frederick Perry. He was sentenced to concurrent terms of five years on the aggravated-battery counts and 20 years on the armed-violence charge.
In a Rule 23 order (87 Ill.2d R. 23) the appellate court held the evidence sufficient to establish defendant's guilt beyond a reasonable doubt. (106 Ill. App.3d 1154.) In a separate opinion (People v. Payne (1982), 106 Ill. App.3d 1034), however, the court reversed the conviction and remanded the case for a new trial because of what it considered to be constitutional error of reversible magnitude. That court said that it reasonably appears from the record in this case that the prosecutor was peremptorily challenging prospective black jurors simply because they were black. Because of its finding the appellate court held the trial judge should have required the prosecutor to demonstrate that black persons were not being excluded solely because of their race. The failure of the trial court to do so, said the appellate court, violated defendant's sixth amendment right to an impartial jury drawn from a fair cross-section of the community and required a new trial. (U.S. Const., amend. VI; Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692.) No question is raised here other than the correctness of this holding.
Of the ten black persons on the venire from which the jurors in this case were drawn, three were excused by the court for cause, six were excused by the prosecutor through the use of peremptory challenges, and one was accepted by both sides and served as a juror. Defendant objected to the prosecutor's use of peremptory challenges for this purpose on the grounds that those persons so challenged were being excused only because of their color. Two white persons were also peremptorily challenged by the prosecution, and the defense exercised all 10 peremptory challenges on white persons. We note parenthetically that, in their briefs, the parties appear to concede that if, in these circumstances, the prosecutor should have been required to justify his use of peremptory challenges, similar explanation would be required from defense counsel. However, in oral argument defense counsel seemed to urge that explanations could not be required of defense counsel.
Our earlier decisions (see, e.g., People v. Davis (1983), 95 Ill.2d 1; People v. King (1973), 54 Ill.2d 291; People v. Powell (1973), 53 Ill.2d 465; People v. Butler (1970), 46 Ill.2d 162; People v. Harris (1959), 17 Ill.2d 446) consistently rejected claims that minority group members had been improperly excluded from the convicting juries. The opinions in those cases, however, did not specifically consider Taylor v. Louisiana, the Supreme Court decision which defendant here urges modified the earlier holding in Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824. In Swain the court held the use of peremptory challenges in particular cases to exclude members of discrete groups was not a violation of equal protection guarantees, but recognized that systematic exclusion of such persons in case after case could infringe upon constitutional protections. Defendant here argues that Taylor established a sixth amendment right to jurors selected from a representative cross section of the community, and that this right precludes the prosecutor from so exercising his peremptory challenges as to eliminate members of a discrete group simply because of that membership. Because the sixth amendment to the Federal Constitution, upon which Taylor is bottomed, had not, when Swain was decided, been held applicable to the States, the appellate court considered that the Swain holding was no longer viable and agreed with defendant.
In People v. Williams (1983), 97 Ill.2d 252, we discussed at length and rejected this specific contention. We there considered the cases upon which defendant and the appellate court in this case relied, and no useful purpose would be served by reiteration of that discussion here. We pointed out Swain's emphasis upon the importance of peremptory challenges to the process of selecting an impartial jury, and that court's conclusion that the use of such challenges against group members solely because of such membership was justified in particular cases. Because Taylor's concern had been with a sixth amendment right to a "fair cross section of the community on venires, panels, or lists from which petit jurors are drawn" (419 U.S. 522, 526, 42 L.Ed. 690, 696, 95 S.Ct. 692, 696), we concluded that Taylor had not diminished Swain's precedential value. We noted, too, the Swain caveat "that the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue." (People v. Williams (1983), 97 Ill.2d 252, 278.) Since the issue in Williams concerned only the alleged exclusion of blacks in that case, and Swain specifically permitted the use of peremptory challenges for that purpose, we found no error occurred. We made clear our agreement with the Swain principle that an essential part of our jury trial system is the right of both sides in particular cases to exercise peremptory challenges as they deem advisable, and our belief that this principle was unaffected by Taylor's announcement of a sixth amendment right to "a fair cross section of the community" on sources from which petit jurors are drawn. Those expressions are dispositive of the only issue before us in this case.
The judgment of the appellate court is reversed and the cause is remanded to that court for consideration of other issues originally argued but not decided.
JUSTICE CLARK, specially concurring:
Although I agree with the underlying notions in the arguments advanced by my colleague Justice Simon, I believe that, based on the facts in this case, the majority opinion is fair and reasonable, and therefore concur in the result with the following
Certainly, no one on this court would disagree with the premise that the systematic exclusion of blacks for jury duty is unconstitutional and should be condemned. However, this is not the situation that we are faced with in the case at bar. A future case may present obvious abuses such as systematic exclusion of jurors on the basis of race, and I would not hesitate to invalidate such a practice, but that is not the case in People v. Payne. In this case, while the defendant is black, the victim is also black. The jury that convicted defendant was composed of 11 whites and one black. The prosecutor used six out of eight peremptory challenges to exclude blacks, but the counsel for the defendant used all of his peremptory challenges to exclude whites. Thus we are not faced with the scenario of an all-white jury convicting a black defendant for a crime against a white victim. However, even in the case before us, the systematic exclusion of blacks from this jury would be unconstitutional if proved. I do not believe it was.
Implicit in many of the arguments advanced for reform in the manner of selecting juries is that blacks are less likely to convict fellow blacks than whites. I am not persuaded that this is the case. Many black communities bear the brunt of violent crime, and the citizens of black communities are not automatically more sympathetic to defendants simply because they have black skin. Such arguments merely perpetuate racial stereotypes that have plagued this nation for too long, and are not buttressed by objective studies on jury behavior. (See H. Kalven, The America Jury 195-210 (1966); see generally McCray v. Abrams (E.D.N.Y. Dec. 21, 1983), No. 83-4406.) The systematic exclusion of any group based on sex or ethnicity is equally repugnant, but the most effective way to prevent this may be the drastic reduction of peremptory challenges. Such a reform could well be considered by the legislature as the answer to an enormously complex problem.
Prospective jurors are drawn from voter registration rolls, and as blacks register to vote in greater numbers, it may become not only foolhardy, but statistically impossible, to obtain a racially homogenous jury in urban America. Until that day is reached, the judiciary must be vigilant to avoid the systematic exclusion of blacks from jury duty, but in my opinion that is not the situation here. I therefore concur in the result.
JUSTICE SIMON, dissenting:
The use of peremptory challenges to exclude black jurors solely on the basis of their race has denied the defendant, Stanley Payne, his constitutional rights to equal protection of the laws and to a trial by a fair and impartial jury drawn from a cross section of the community where he was tried. The majority's continuing support of this practice will erode public confidence in the fairness and impartiality of our criminal justice system, particularly among the large portion of our population who are of the same race as the persons who are the objects of the exclusion. While this issue cries out for a bold return to first principles, the majority has offered only an inapplicable precedent and distinctions which I find unsound.
Swain v. Alabama Does Not Require A Reversal of the Appellate Court Decision in this Case
The majority holds that this case is controlled by Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, where the Supreme Court concluded that the use of peremptory challenges to exclude black jurors does not violate the equal protection clause unless "prosecutors have consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself" (380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837). Swain, however, said absolutely nothing about the principal issue considered by the appellate court in this case: whether the use of peremptory challenges to exclude jurors on the basis of race violates the sixth amendment. That amendment was not even held to be applicable to the States through the fourteenth amendment's due process clause until two years after Swain was decided. See Duncan v. Louisiana (1968), 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444.
The fourteenth amendment's equal protection clause and the sixth amendment's guarantee of trial by an impartial jury have entirely different content and scope; the majority therefore errs in assuming that a practice declared constitutional under one provision must be treated the same under the other. For example, in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692, the Supreme Court held unconstitutional under the sixth amendment a State's system of excluding women from jury venires unless they volunteered. The court reached this result in Taylor even though it had previously held that a similar system for selecting women did not violate the equal protection clause (Hoyt v. Florida (1961), 368 U.S. 57, 7 L.Ed.2d 118, 82 S.Ct. 159). In Taylor the court distinguished Hoyt with ease, observing that it "did not involve a defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community." 419 U.S. 522, 534, 42 L.Ed.2d 690, 700, 95 S.Ct. 692, 699.
In holding that a prosecutor's use of peremptory challenges to exclude black jurors from a particular jury solely on the basis of race does not violate the sixth amendment so long as there is no systematic exclusion of blacks from the jury system, the majority also relies heavily on the Supreme Court's observations in Swain concerning the history of peremptory challenges. (See People v. Williams (1983), 97 Ill.2d 252, 276-77.) In Swain the Supreme Court observed that the system of peremptory challenges is deeply rooted in our history and "[t]he persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury." 380 U.S. 202, 219, 13 L.Ed.2d 759, 771-72, 85 S.Ct. 824, 835.
The majority places too much reliance on the weight of history. Although the historical fact that the use of peremptory challenges predates the adoption of the Bill of Rights is remotely relevant to the question before us, it is not conclusive. The Constitution is a living document that each generation must interpret in the light of its own experience. "Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government." (Glasser v. United States (1942), 315 U.S. 60, 85, 86 L.Ed. 680, 707, 62 S.Ct. 457, 472.) We must return to the basic guarantee contained in the sixth amendment to determine whether it is constitutional for State prosecuting officials to use peremptory challenges to exclude black persons from jury service solely on the basis of race. The fact that a practice has been adhered to for a long time does not justify perpetuating it when it undermines fundamental constitutional guarantees.
In reaching its decision the majority also relies on the Supreme Court's observation in Swain that the function of the peremptory challenge is "to eliminate extremes of partiality on both sides" and "to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise" (380 U.S. 202, 219, 13 L.Ed.2d 759, 772, 85 S.Ct. 824, 835). By permitting trial attorneys the opportunity to exclude jurors when their developed intuition tells them that the juror is not impartial, the peremptory challenge, according to the majority, helps promote the concept of trial by an impartial jury. Under the majority's view (see People v. Williams (1983), 97 Ill.2d 252, 277-78), this function cannot be served unless the peremptory challenge retains its traditional character as a challenge "exercised without a reason stated, without inquiry and without being subject to the court's control" (Swain v. Alabama (1965), 380 U.S. 202, 220, 13 L.Ed.2d 759, 772, 85 S.Ct. 824, 836).
The majority's extensive reliance on the function of the peremptory challenge is also misplaced. The use of peremptory challenges may well promote the concept of trial by jury by increasing the parties' confidence that the jury deciding their case is impartial. Nevertheless, the Supreme Court has not held that peremptory challenges are required by the Constitution (see, e.g., Stilson v. United States (1919), 250 U.S. 583, 586, 63 L.Ed.2d 1154, 1156, 40 S.Ct. 28, 30), and a State presumably could eliminate such challenges altogether. Peremptory challenges may often have a useful and legitimate purpose, but they are entitled to no more deference in constitutional analysis than any other device used by State officials to exclude persons from jury service on the basis of race, sex, religion or national origin. To the extent that the practice is unconstitutional under the sixth amendment, any conviction obtained through its use is void. Just as the unconstitutional discharge of State employees cannot be excused by referring to the general rule that employers have the right to hire and fire as they please and for any reason they please (see Mt. Healthy City School District v. Doyle (1977), 429 U.S. 274, 283-84, 50 L.Ed.2d 471, 481, 97 S.Ct. 568, 574), so racial discrimination in the voir dire cannot be condoned by simply pointing to the word "peremptory" and asserting that it means what it says.
The Use of Peremptory Challenges to Exclude Black People, as a Group, From Serving on a Particular Jury is Incompatible With the Right to a Trial by Jury Guaranteed by the Sixth Amendment.
The sixth amendment to the Federal Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (U.S. Const., amend. VI.) "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." (Smith v. Texas (1940), 311 U.S. 128, 130, 85 L.Ed. 84, 86, 61 S.Ct. 164, 165.) In Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L.Ed.2d 690, 697, 95 S.Ct. 692, 697, the Supreme Court held ...