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03/11/87 the People of the State of v. Floyd Brown

March 11, 1987





505 N.E.2d 397, 152 Ill. App. 3d 996, 106 Ill. Dec. 91 1987.IL.283

Appeal from the Circuit Court of Macon County; the Hon. Frank W. Lincoln, Judge, presiding.


PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.


Defendant was convicted of retail theft over $150 (Ill. Rev. Stat. 1985, ch. 38, par. 16A-3(a)), a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, par. 16A-10(3)). Both of the issues raised by defendant on appeal relate to the selection of the jury. Because no issue is raised regarding the sufficiency of the evidence upon which defendant was convicted, the facts of this case will be set forth only to the extent necessary to resolve the issue raised on appeal.

On December 4, 1985, defendant was charged with retail theft in excess of $150 (Ill. Rev. Stat. 1985, ch. 38, par. 16A-3(a)). On January 14, 1986, the State filed a notice of election notifying the defendant that the State planned to try the defendant on the present charges rather than any other pending charges.

On January 27, 1986, defense counsel filed a motion for continuance stating that the State had previously elected to proceed on the present charges rather than cause No. 85-CF-39, a case in which defendant was charged with pandering (Ill. Rev. Stat. 1983, ch. 38, par. 11-16) and that prior to trial, the State's Attorney had posted a schedule of jury trials, listing both the present cause and the cause in which the defendant was charged with pandering. Counsel stated that the schedule had been posted on a bulletin board and had been read by many jurors. Counsel argued that the posting prejudiced the defendant in the eyes of potential jurors, and, therefore, the trial should be continued to the next jury call. A copy of the felony jury trial setting was attached to the defendant's motion. A hearing on the defendant's motion for a continuance was held on January 20, 1986, and the motion was denied. The court indicated that defense counsel could question the potential jurors concerning their having read the jury list during voir dire.

The voir dire of the jurors was neither recorded nor transcribed. In defendant's post-trial motion, defense counsel alleged that the court had refused to dismiss for cause those jurors who had seen and read the jury trial schedule posted by the State's Attorney which listed the charges against the defendant in another case. Defendant's post-trial motion was denied.

Following the voir dire of jurors, defense counsel moved for a mistrial based upon the State's exercise of peremptory challenge of Mr. Rhymes, who was, according to defense counsel, the only potential black juror. Defense counsel further alleged that the State's Attorney of Macon County had a consistent practice of excusing black jurors and that Assistant State's Attorney Richard Current, the prosecutor in the instant case, had been the worst offender of that particular practice. Counsel then stated that in the prior three days he had picked three juries and, in each of those cases, the State had exercised peremptory challenges to exclude every black juror. Counsel requested that the court either grant a mistrial or order Rhymes empaneled as one of the jurors.

In response, the assistant State's Attorney objected to the motion for mistrial and stated that the reason he excluded Rhymes was that Rhymes was the only juror who had some kind of contact with defendant. Based on the fact that Rhymes had stated that he had seen Brown in the local taverns, the prosecutor stated that Rhymes was not the type of juror the State wanted. The motion for mistrial was denied.

The first argument raised by defendant on appeal is that he was denied equal protection of the law by the State's use of a peremptory challenge to exclude the only black venireman from service on the jury in the instant case. Defendant argues that the trial court committed reversible error in failing to grant his motion for a mistrial on this ground.

We first note that defendant failed to raise this point in his post-trial motion, and that he did not argue this point at the oral argument of said motion. Normally, failure to raise a point in a post-trial motion acts as a waiver of the issue on appeal. (People v. Berry (1984), 99 Ill. 2d 499, 502, 460 N.E.2d 742, 743; People v. Pruden (1982), 110 Ill. App. 3d 250, 256, 442 N.E.2d 284, 289.) Nevertheless, we adhere to the principle that we should consider errors not properly preserved in a criminal case where their nature is such as to deprive an accused of his constitutional rights. (See People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432, 434.) Furthermore, a reviewing court's responsibility for a just result and for the maintenance of a uniform body of precedent may sometimes override considerations of waiver. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) Consequently, we have decided to address the issue regarding the peremptory challenge of the black juror despite the fact that this issue was not raised in the post-trial motion.

In 1965, the United States Supreme Court stated that the State's exercise of peremptory challenges which resulted in an all white jury did not of itself show a constitutional violation. Rather, a constitutional issue of equal protection arose only where there was a systematic and purposeful exclusion of blacks from juries because of race. (Swain v. Alabama (1965), 380 U.S. 202, 223-24, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837-38.) The standard set forth in Swain has been consistently followed by Illinois courts. See People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, cert. denied (1984), 466 U.S. 981, 80 ...

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