APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
505 N.E.2d 1107, 153 Ill. App. 3d 417, 106 Ill. Dec. 316 1987.IL.224
Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon and the Hon. Harry B. Aron, Judges, presiding.
Justice Hartman delivered the opinion of the court. Scariano, P.J., and Stamos, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Defendant appeals his convictions for voluntary manslaughter and aggravated battery and his concurrent sentences of 15 years' imprisonment for manslaughter and 5 years' imprisonment for aggravated battery. He raises as issues whether: (1) the circuit court erred in not finding that the State's use of peremptory challenges improperly excluded black jurors because of their race; (2) the circuit court erred in admitting certain demonstrative evidence; (3) the circuit court erred in refusing to admit into evidence a certified copy of the homicide victim's aggravated-battery conviction; (4) defendant's due process rights were violated by improper argument by the prosecutor; (5) the juvenile court abused its discretion by transferring the case for prosecution under the criminal code; and (6) the circuit court abused its discretion by considering improper factors at sentencing.
On November 17, 1983, defendant Disby Seals, then age 14, a member of the Puerto Rican Stones gang, fired five shots from a .45-caliber semi-automatic pistol that killed Ricky Perez, age 19, a member of the Latin Eagles, and wounded Johnny Nieves, age 17, another Latin Eagle. Defendant had been walking with two female friends, Gloria Galvan, age 17, and Kathy Curtis, age 16, near Blaine School when they met three members of the Latin Eagles: Edwin Villariny, age 17, Perez, and Nieves. Nieves told Galvan that she should not wear the sweater she was wearing, and Galvan replied she would wear what she pleased. Perez then asked Nieves, "Who is that punk?" referring to defendant. Two different versions of what happened next were given at trial.
According to Nieves and Villariny, Nieves told Perez that defendant had fired shots at them four weeks earlier. Perez then turned to look at defendant, who drew a pistol from his waistband, causing Perez, Villariny, and Nieves to start running away. Defendant chased them, shouted "Stone Love," and fired shots which hit Perez and Villariny.
Defendant and his two companions asserted that Nieves, in addition to talking to Galvan, had reached out and tried to grab her sweater and a struggle began. According to defendant, Perez asked defendant what gang he belonged to. After defendant did not reply, Villariny put his hand in the front waistband of his pants as if to pull out a gun and Perez, holding his hands closed and chest high, started towards defendant. Defendant asserts he believed Villariny would shoot him and Perez would hit him. Defendant took one step back, pulled out his gun, and fired five times. According to defendant he did not aim the gun, had never used a gun before, had heard of Nieves and Villariny's having guns, and believed the three Latin Eagles were going to kill him.
After the shooting, defendant and his companions ran away. He returned the gun to Jose Rivera, leader of the Puerto Rican Stones. Defendant then went to 1137 West Belmont, where he was arrested. Perez, Villariny, and Nieves were taken to Illinois Masonic Hospital. Villariny had a bullet removed from his leg which had entered from the back. Villariny also had a bullet bruise to his hip. Perez died at the hospital of massive internal bleeding caused by a bullet that entered through his back and lacerated his lung, bronchus, and aorta.
Defendant claimed to have had three previous hostile encounters with Nieves. On the last day of school in June 1982, while walking home with his younger sister he had been punched by Nieves and Villariny when he denied being a gang member. A third Latin Eagle present kicked defendant in the stomach. As defendant and his sister ran away, Nieves followed and shouted that he would kill defendant the next time they met. Defendant believed he saw a gun in Nieves' hands. In September 1982, defendant and a friend came across Nieves, who ripped a jacket of his friend and reminded defendant of their past meeting. In October of 1983, Nieves hit another friend of defendant's with a crowbar and took a swing at defendant. Defendant further stated he had been given the gun he used on November 17 earlier that day by Jose Rivera for protection against Latin Eagles.
Defendant was indicted on two counts of attempted murder, one count of murder, and one count of aggravated battery. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1, 12-4.) After a hearing, the juvenile court ordered defendant to be tried as an adult. A jury convicted defendant of voluntary manslaughter and aggravated battery on October 26, 1984. The circuit court sentenced defendant as previously noted. Defendant appeals. I
Defendant contends that the prosecution improperly used peremptory challenges to disproportionately exclude black jurors from his jury. The United States Supreme Court's recent decision on this subject (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712) supports defendant's theory. The State asserts that the Batson analysis should not be used and, in any case, no purposeful discrimination took place.
Prosecutors may not purposefully discriminate against a racial group in selecting a petit jury in a trial of a defendant belonging to that group. To establish a prima facie case of discrimination, a defendant must demonstrate that he is a member of a recognizable racial group and that the prosecutor used peremptory challenges to remove members of his race from the jury panel. (Batson v. Kentucky (1986), 476 U.S. 79, , 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.) The defendant must then show the relevant facts and circumstances of the case raise an inference of discrimination. After this prima facie case is made, the State has the burden of putting forward a neutral explanation for ...