Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, George Frazier, was found guilty of theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)), and he was sentenced to seven years in the Illinois Department of Corrections under the extended-term provision of section 5-8-2(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-2(a)(5)). We reverse and remand.
Although defendant had filed a jury demand, at the time the case was called for trial he chose to waive a jury and he requested a bench trial. The trial judge denied defendant's request, stating:
"THE COURT: Let the record reflect there is a jury in the courtroom. The State's witnesses have been sent for. This case has been set for trial and previously, there has always been a demand for a jury trial. We have gone to the trouble of getting a jury together. I think this notification comes too late. It is discretionary with the Court. There has heretofore been a demand for a jury, and I will deny the defendant's request for a bench trial, and we will proceed to pick the jury."
During the voir dire examination of the prospective jurors, the State used five of its peremptory challenges. All five of the persons excluded were blacks. In the process, the State excluded 100% of the available black jurors who were questioned during the voir dire proceedings. Thus, as a result of the State's use of its peremptory challenges, defendant, who is black, was tried and convicted by an all-white jury of the theft of a white woman's purse.
In his brief, in addition to his contention that his sentence was excessive, defendant contends that he was denied his right to a bench trial and that he was then denied the type of fair jury trial guaranteed by the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross-section of the community by systematically excluding blacks from the jury solely because of their race. *fn1
The State did not file a brief. Instead, the State filed a petition confessing error on defendant's contention that he was denied his right to a bench trial. Based on its confession of error, the State moved that we "vacate defendant's conviction and sentence for theft and remand the case for a new trial."
• 1 Plainly, the trial court erred in denying defendant's request for a bench trial since the request was made before the commencement of trial. (See Ill. Rev. Stat. 1983, ch. 38, pars. 103-6, 115-1; People v. Spegal (1955), 5 Ill.2d 211, 125 N.E.2d 468.) However, since the double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first trial (Burks v. United States (1978), 437 U.S. 1, 11, 57 L.Ed.2d 1, 9-10, 98 S.Ct. 2141, 2147), we shall avoid the risk of subjecting defendant to double jeopardy by deciding whether the evidence adduced at trial was sufficient to sustain defendant's conviction for theft. See People v. Taylor (1979), 76 Ill.2d 289, 309, 391 N.E.2d 366, 375.
• 2 The victim testified that on April 28, 1982, at about 11:45 a.m., she was walking with a friend near the Garfield Park conservatory in Chicago when two men ran between them. One of the men grabbed at her purse. She attempted to hold on to it, but the strap of the purse broke, and the man ran off with the purse. The victim told her friend to call the police, and she ran after the man who had taken her purse. She followed him past a field to a street behind the conservatory. When the man crossed the street and ran into an alley, she stayed on the opposite side of the street parallel to the alley in an attempt to see the man between the buildings. She eventually lost sight of him, and she had started back to the conservatory when a police officer arrived. The victim gave a description of the man to the police officer. The police officer then accompanied the victim and her friend to look for the man in the area.
The victim further testified that she saw and identified the man on a sidewalk several blocks from the conservatory. When approached by the police squad car, the man started to run down a walkway between two buildings. The police officer chased him for about 20 feet until the suspect entered an alley. The police officer returned to his car and called in the description of the suspect and asked for assistance. Shortly thereafter, the police officer received a radio call from another police officer that a man fitting the description of the suspect was being held at a location on Springfield Street. The police officer and the two women proceeded to that location. When they arrived, defendant was being taken from a garage in handcuffs. The victim identified defendant as the man who had taken her purse. After the testimony of the victim, her friend and the two police officers, the State rested its case. The defense's motion for a directed verdict was denied, and the defense rested. No other evidence was received.
Under the circumstances, we believe that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant's guilt or innocence which would be binding on retrial, but rather, our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Taylor (1979), 76 Ill.2d 289, 309, 391 N.E.2d 366, 375.
• 3 Defendant's other contention, that the State unconstitutionally used its peremptory challenges to systematically exclude blacks from the jury solely because of their race, cannot go unnoticed. It has been stated that "the practice of excluding jurors on the basis of race is pervasive in Illinois and that it raises constitutional issues of the gravest dimension under two separate guarantees." (People v. Moore (1984), 101 Ill.2d 549, 560 (Simon, J., dissenting from denial of leave to appeal); see also Waltz, Now it's Harder for Lawyers to Pick a Biased Jury, Chicago Sun-Times, July 13, 1982, at 30.) Moreover, two members of the United States Supreme Court have called the use of peremptory challenges by prosecutors to systematically exclude blacks from juries "one of the gravest and most persistent problems facing the American judiciary today." (Williams v. Illinois (1984), 466 U.S. ___, ___, 80 L.Ed.2d 836, 838, 104 S.Ct. 2364, 2366 (Marshall, J., dissenting, joined by Brennan, J.).) The Williams case was referred to when "the prosecutorial abuse of peremptory challenges" was recently described as a problem which "has grown to epidemic proportions in certain regions of the county." (Harris v. Texas (1984), 467 U.S. ___, ___, 82 L.Ed.2d 858, 860, 104 S.Ct. 3556, 3558 (Marshall, J., dissenting).) In addition, five members of the United States Supreme Court have indicated that the systematic exclusion of blacks from jury service through the State's use of peremptory challenges is so serious that it will merit the court's review at a later date. See McCray v. New York (1983), 461 U.S. 961, 77 L.Ed.2d 1322, 103 S.Ct. 2438 (opinion of Stevens, J., joined by Blackmun and Powell, JJ.) (dissenting opinion of Marshall, J., joined by Brennan, J.).
Under the circumstances, we believe that when the issue of a prosecutor's systematic exclusion of citizens from jury service solely because of their race is raised, *fn2 we should not cower but rather we should seize the high ground on the issue and discuss it freely and with conviction to the end that prosecutors are no longer permitted to systematically exclude citizens from serving on juries solely because of their race, gender or ethnicity. On this point, pursuant to the Illinois Constitution, article VI, section 17, Chief Justice Howard C. Ryan, on behalf of the Illinois Supreme Court, recently submitted to the General Assembly an annual report suggesting improvements in the administration of justice. The report, dated January 1, 1984, states:
"Nevertheless, we believe it important to reiterate what should be clear from our decisions: `[N]o one * * * would disagree with the premise that the systematic exclusion of blacks for jury duty is unconstitutional and should be condemned. * * * 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.' People v. Payne (1983), 99 Ill.2d 135, 139, 140 (Clark, ...