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People v. Nurse

OPINION FILED MARCH 1, 1985.

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

v.

JOSEPH A. NURSE ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendants Joseph A. Nurse and Curtis Johnson were found guilty of armed robbery. Nurse was sentenced to 16 years' imprisonment; Johnson was sentenced to 12 years. Defendants appeal, contending that: (1) the prosecution's use of peremptory challenges to systematically exclude black jurors deprived defendants of a constitutionally representative jury, (2) the trial court abused its discretion in denying defendants' motion for a continuance or mistrial when a necessary witness was unexpectedly unavailable for trial, and (3) the prosecution failed to prove them guilty beyond a reasonable doubt. We affirm.

Following selection of the petit jury, defendants moved for a mistrial, alleging that the State had systematically excluded blacks from the jury by the use of peremptory challenges. The trial court denied the motions, stating that it was required to follow the decisions of this court and of the Illinois Supreme Court which hold that peremptory challenges are not subject to judicial scrutiny. Testimony was then presented at the trial.

Carlos Magana testified at trial. On April 5, 1983, at 3 p.m., while at a currency exchange signing his paycheck, he noticed a man looking at his check from about three feet away. Magana then cashed the check, placed some of the money in his pants and the rest in a hidden pocket in his jacket. Magana then walked three blocks to his home. Upon arriving outside his second-floor apartment, he heard footsteps and saw a man with a gun coming up the stairs. A second man was with him. Magana identified Nurse as the man with the gun and Johnson as the second man. Johnson was also identified in court as the man who watched Magana sign his paycheck. The men demanded Magana's money and a struggle ensued. During the struggle, Magana's wife opened the door of the apartment and observed the robbers. Magana shouted at her to close the door and call the police. She complied. Magana then pushed Johnson partially down the stairs. Nurse then pushed Magana down the stairs, followed after him, and tried to take his jacket while Magana was lying on his back on the first-floor landing. Magana rolled off the landing, ran to the back door to enter his apartment and waited for the police, who took him to the hospital, where he was treated for head injuries and released.

Three days later, on April 8, 1983, Magana and his wife were at a laundry when they observed one of the robbers walking down the street. Police were called and Johnson was arrested. Nurse, who was with Johnson at the time and had his face partially concealed with a baseball cap, was not then arrested. Subsequently, at the police station Magana inquired what had become of the man who had been with Johnson. Thereupon, Nurse was arrested and later identified by Magana in a lineup as the other armed robber.

Barbara Magana substantially corroborated her husband's testimony. She added that one of the men outside the apartment turned and looked at her from one foot away for a few seconds. She identified this man as Johnson. This was also the man she recognized on the street on April 8. She testified that she did not see the face of the other person at the time of the incident.

Defendants called several witnesses to account for their whereabouts the afternoon of the armed robbery. Antoinette Johnson, defendant Johnson's niece, said she saw Johnson at her apartment just before 3 p.m., at which time he was seeking to borrow money. Thelma Johnson, the defendant's mother, testified that she arrived home after 4 p.m. that day and found him watching television.

Beatrice Wilson, the former wife of Nurse, testified that he left her apartment in Evanston at about 2 p.m. that day and returned with his friend Sidney Thomas at 3:15 or 3:20 p.m. She stated that the first occasion she told anyone that Nurse was with her at that time was on direct examination. Gwendolyn Green testified that she saw Nurse with Sidney Thomas at the Gray Moon tavern on North Paulina Avenue at about 3:45 p.m. on April 5, 1983. Another friend of Nurse's, Hayward Rose, testified that Nurse and Thomas were in the Gray Moon at 4 p.m. that day. Green and Rose both acknowledged that the currency exchange where the victim cashed his paycheck was located near the Gray Moon. Thomas testified that he had repeatedly tried to contact the police to tell them that Nurse was with him at the time of the armed robbery, but was unable to reach the officers investigating the case.

During trial on August 30, 1983, the defense requested a continuance or mistrial when it was learned that the officers who first reported to the scene of the armed robbery would not be available to testify. The State responded that one of the officers was on a medical furlough indefinitely and the other was on leave until September 15, 1983. The court denied defendants' motion, stating that the prosecution was not required to produce witnesses under such circumstances and did so only as an accommodation. The court also stated that there had been "quite a lot of cross-examination and discussion of the point in issue" and that the jury had therefore been apprised of the dispute.

Following the jury's verdicts and the impositions of sentences, defendants appeal.

OPINION

• 1 Defendants' first contention on appeal is that the prosecution's systematic exclusion of blacks by peremptory challenges deprived defendants of a constitutionally representative jury. Specifically, they assert that they were denied equal protection and that they were denied their sixth amendment right to a jury drawn from a fair cross-section of the population, as enunciated in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692.

Defendants in support of their motion for a mistrial stated that nine of the 40 potential jurors were black and were excluded from the jury by the State's peremptory challenges. The State responded that one white juror was also challenged and that the victim was Mexican and the defense had excluded potential jurors of Mexican descent.

The Illinois supreme court has heretofore expressly held that excluding blacks by the use of peremptory challenges is not a violation of equal protection. (People v. Gaines (1985), 105 Ill.2d 79; People v. Davis (1983), 95 Ill.2d 1, 447 N.E.2d 353.) In addition, reversal is not required under the sixth amendment when peremptory challenges are used to exclude black jurors in an individual case. (Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692; People v. Payne (1983), 99 Ill.2d 135, 457 N.E.2d 1202; People v. Williams (1983), 97 Ill.2d 252, 454 N.E.2d 220.) Accordingly, when only the alleged exclusion of blacks in a particular case is presented, there is no violation of defendants' rights, because it is an essential part of our trial by jury system that ...


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