Appeal from the Circuit Court of Kankakee County; the Hon.
Edwin B. Grabiec, Judge, presiding.
JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 22, 1986.
Defendant, Terry Taylor, was charged with murder, armed robbery, and attempted murder. Defendant's first trial on the charges resulted in a mistrial due to a hung jury. Upon retrial, defendant was convicted of the charges. Defendant waived his right to have a jury make the sentencing determination in a death penalty hearing. The trial judge declined to impose the sentence of death. Instead, defendant was sentenced to concurrent terms of 55 years on the murder, and 20 years each on the armed robbery and the attempted murder. Defendant appeals his convictions. We affirm.
As defendant does not challenge the sufficiency of the evidence against him, only those facts necessary for the purposes of this appeal will be presented. On the evening of March 4, 1984, two black men entered the Dunkin' Donuts shop in Kankakee. The shop owner and his brother were in the store with an employee. Two college students had previously entered. They were sitting near the entrance. No one in the shop could see the face of either black man. The taller of the two asked for change for a dollar bill from the owner's brother.
The man then pulled a gun and demanded the money in the register. The shorter man went behind the counter to get the money. A struggle ensued. The taller man shot the owner's brother. The owner and the employee came out from the back room. The gunman shot the employee. The two assailants fled. The employee died from the gunshot wound. The brother survived.
The State presented testimony from Patty Howard, defendant's girlfriend, and Melvin Fulton, the original co-defendant. Charges against Fulton were nol-prossed in exchange for his testimony. He was, however, sent to prison on a parole violation based on his conduct in the incident. Howard informed police that defendant admitted committing the crime. The combination of Fulton's and Howard's testimony fully implicated defendant.
The defense presented witnesses to rebut Fulton's and Howard's stories. The defense theory was that a man other than defendant helped Fulton in the robbery. Defendant did not testify.
Defendant was convicted and sentenced. He brings this appeal, raising many points.
The first issue we shall examine is whether the trial court's use of the Witherspoon test in voir dire prejudiced defendant. We decline to further consider the issue. Defendant's claim was based on Grigsby v. Mabry (8th Cir. 1985), 758 F.2d 226. That case, however, was reversed by the United States Supreme Court on appeal sub nom. (Lockhart v. McCree (1986), 476 U.S. ___, 90 L.Ed.2d 137, 106 S.Ct. 1758). Our supreme court has also recently rejected such a claim in People v. Collins (1985), 106 Ill.2d 237, 478 N.E.2d 267.
• 1 Defendant next contends that the prosecutor's use of peremptory challenges improperly kept blacks off the jury. He cites the recent case Batson v. Kentucky (1986), 476 U.S. ___, 90 L.Ed.2d 69, 106 S.Ct. 1712, as being controlling. While Batson overruled the Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, requirement of a showing of systematic exclusion of blacks, nothing in the majority opinion leads us to believe that the case holding applies retroactively. We also note that four justices did not think retroactive application was proper. Batson v. Kentucky (1986), 476 U.S. ___, ___, 90 L.Ed.2d 69, 90, 106 S.Ct. 1712, 1725 (White, J., concurring); 476 U.S. ___, ___, 90 L.Ed.2d 69, 97, 106 S.Ct. 1712, 1731 (O'Connor, J., concurring); 476 U.S. ___, ___, 90 L.Ed.2d 69, 91, 106 S.Ct. 1712, 1731 (Burger, C.J., Rehnquist, J., dissenting).
We decline to give Batson retroactive application. In making the determination, the following criteria are analyzed: (a) the purpose to be served by the new standards; (b) the extent of the reliance on the old standards; and (c) the effect on the administration of justice of a retroactive application of the new standards. (Solem v. Stumes (1984), 465 U.S. 638, 643, 79 L.Ed.2d 579, 587, 104 S.Ct. 1338, 1341-42.) The potential problems posed by retroactive application when examined under criteria (b) and (c) nearly mandate prospective application. "When a court has overruled a past precedent * * * the reliance and effect factors in themselves `have virtually compelled a finding of non-retroactivity.' [Citations.]" 465 U.S. 638, 646, 79 L.Ed.2d 579, 589, 104 S.Ct. 1338, 1343.
We also note that our supreme court expressly relied upon Swain in its latest ruling on the issue (People v. Gaines (1985), 105 Ill.2d 79, 88 473 N.E.2d 868). It is on the basis of this authority, and other such precedent, that the trial court did not allow defendant's motion to discharge the jury.
Defendant may have made the prima facia showing required in Batson; we do not decide the issue. However, we are not going to remand the cause for the trial court in order to allow the State's Attorney to explain, by neutral reason, why he excused the black veniremen. To do so would allow every defendant on either direct or collateral appeal to have his voir dire examined and reconstructed. This would be a massive waste of judicial resources. No explanation was required of the State's Attorney at the time of the trial. We will not penalize the State by reversing the case for not doing something that it was not required to do.
• 2 The next two issues we shall examine deal with the jury instructions and verdict forms. The State claims that the errors were waived and do not amount to plain error. The first contention is that the jury was improperly instructed on attempted murder. The necessary mental state for attempted murder is that the defendant have the specific intent to kill. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.) The instant attempted-murder instruction stated that the ...