APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
505 N.E.2d 1272, 153 Ill. App. 3d 245, 106 Ill. Dec. 481 1987.IL.302
Appeal from the Circuit Court of Cook County; the Hon. Dwight McKay, Judge, presiding.
Justice Pincham delivered the opinion of the court. Lorez and Murray, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Defendant was charged with the offenses of robbery, residential burglary, aggravated battery, and home invasion. He was tried by a jury in the circuit court of Cook County and found guilty of robbery and residential burglary (Ill. Rev. Stat. 1985, ch. 38, pars. 18-1, 19-3) and not guilty of the remaining charges. He was sentenced to 13 years' imprisonment in the Illinois Department of Corrections on the residential-burglary conviction. On this appeal, defendant contends that he was denied his constitutional rights to a fair trial and to be tried by an impartial jury because the State used its peremptory challenges to exclude all black citizens from his jury.
The record reveals that during the selection of the first panel of four jurors, the State exercised four peremptory challenges, one of which was against a white citizen. At the Conclusion of the selection of the first panel, the defendant's attorney moved for a mistrial in the following language:
"Your honor, at this time I will make a formal motion for a mistrial, based upon the State's misuse of their challenges to the jury. he State has used . . . four peremptory challenges, . . . three out of those four persons were Black; and, Judge, there is no other reason for any one of those jurors to have been excluded except for the fact that they were Black.
And there was nothing in their backgrounds that was adverse to any kind of interest, at least in the information that I had heard, unless the State has something to the contrary.
And the State is once again attempting at this time to deprive the Defendant of his Fifth, Sixth, and . . . Fourteenth Amendment Rights under the United States Constitution.
And I move to declare a mistrial.
I think that the State . . . [is] using their peremptory challenges primarily, not only primarily, but solely for the purpose of excluding Blacks."
The assistant State's Attorney responded that the State was not engaged in the systematic exclusion of blacks and pointed out that the victim in the case was a black woman.
"I am of the opinion that the Supreme Court of Illinois has now definitively said that the State has the unfettered right to use its peremptory challenges in any fashion that the State's Attorney sees fit, and that they are not to be required to even state why, which is nothing new; but if anything is clear, it seems to me it is the law that the right to peremptory challenges is an unfettered right. So your motion is denied."
After the 12 jurors and two alternate jurors were selected and sworn, the defendant's attorney made another motion for a mistrial in the following language:
"I will once again be asking for a Mis-trial. I would like the record to reflect that of other six peremptories . . . that the State has executed today, that five of them have been against Black persons . . ..
The only Black person the State accepted as a jury member was one who . . . is seated as an alternate.
I think that this is a very blatant example of racial discrimination on its face, and if this Court has no power to actually enjoin the State from participating in these kinds of practices, we may as well forget about the Fourteenth Amendment and the Fifth Amendment and the Sixth Amendment.
I think that this Court under such blatant, obvious, practices engaged in by the State had not only the right, and the duty, but the obligation to pursue a proper remedy . . . this Court can, as a matter of fact, declare a Mis-trial when it becomes obvious that the State is, as a matter of fact, trying to prevent the Defendant from getting a fair trial . . ..
n this case, Judge, it is not only the case of racial discrimination but they are using their peremptory challenges by excluding people of the Defendant's race . . . in order to prevent the Defendant from getting a fair trial.
he State's ability . . . to execute certain peremptory challenges here goes to the entire aspect whether this man simply because of the fact he is a Black man and even more important is as to how our own criminal Justice system is viewed in toto by the community.
If this kind of a practice -- if a Black man or a Black woman, or any Black person can step into this courtroom and say that simply because of the fact that you are Black you cannot serve impartially on this jury, then, as a matter of fact, we might as well all forget about even being here. We might as well all forget about saying there was such a thing as the Fourteenth Amendment in operation. . . ..
he State had no good cause to excuse any of those Black people who they did excuse except for the fact that they were Black.
Judge, we ask that your Honor . . . grant our motion for a Mis-trial because of the blatant activity and intentional activity engaged in by the State."
The assistant State's Attorney replied that "there has been no systematic exclusion of Blacks in this case." The trial Judge ruled that the State had a right to exercise a certain number of peremptory challenges in a criminal case, that "the Supreme Court has now said that the word 'peremptory' means that they need not give any kind of basis for the exercise of a peremptory challenge," and denied the motion for a mistrial.
The jury was selected in this case on September 6, 1983, evidence was presented on September 7 and 8, 1983, and on the last date the jury returned its guilty verdicts. The defendant was sentenced on October 7, 1983.
On April 30, 1986, the Supreme Court of the United States decided Batson v. Kentucky (1986), 476 U.S. 76, 90 L. Ed. 2d 69, 106 S. Ct. 1712. In Batson, the prosecutor exercised four peremptory challenges against the four blacks on the venire. An all white jury was selected. The defendant's attorney asked that the jury be discharged on the ground that the prosecutor's exercise of the four challenges against the blacks violated the defendant's rights under the sixth and fourteenth amendments to a jury selected from a cross-section of the community and under the fourteenth amendment to equal protection of the laws.
The Supreme Court held in Batson that the equal protection clause of the fourteenth amendment prohibits the State from excluding members of a defendant's race from the jury venire on account of race or because of the false assumption that members of his race as a group are not qualified to serve as jurors. The court further held that the equal protection clause also prohibited a prosecutor from exercising peremptory challenges against jurors solely because of their race or on the assumption that black jurors will be unable to impartially consider the State's case against a black defendant and that for the State to deny a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror.
The court in Batson ruled that to establish a prima facie case that a prosecutor has purposefully discriminated by exercising peremptory challenges, a defendant need only show that he is a member of a cognizable racial group, that the peremptory challenges by the prosecutor have been exercised to remove members of the defendant's race from the jury, and that when the defendant establishes a prima facie case, the burden is on the prosecutor to articulate a neutral explanation for excusing the black jurors. Because the prosecutor was not required by the trial court in Batson to so explain his removal of the black persons from the jury, the Supreme Court reversed the defendant's conviction for burglary and receipt of stolen property and remanded the case for further proceedings.
The case at bar was pending on review before this court when Batson was decided. The Supreme Court of the United States held on January 13, 1983, in Griffith v. Kentucky (1987), 479 U.S. , 93 L. Ed. 2d 649, 107 S. Ct. 708, that the rule in Batson applies retroactively to all cases, State or Federal, pending on direct review or not yet final.
We have thoroughly reviewed the voir dire examination of the jurors who were excused by the State's exercise of peremptory challenges. *fn1 The record before us reveals prima facie, purposeful discrimination in the exclusion of the black jurors. We remand the cause and if the prosecutor of this case fails to come forward with a neutral explanation for his exclusion of the jurors, the trial court is ordered to set aside the defendant's conviction and grant him a new trial.
"BRENDA PERKINS, was called as a prospective juror herein, having been first duly sworn, was examined and testified as follows: VOIR DIRE EXAMINATION
Q. You live on the south side of Chicago?
Q. Thirty-four years of age, and employed by the Illinois Bell Telephone Company?
Q. Can you just say a few words about how you do that?
A. I have been in this building before collecting from the pay telephones. What you do is take the receptacle in the telephone, pull it out of the telephone, and replace an empty one.
Q. You travel around from place to place where there are public phones and take the money out?
Q. And bring that back to wherever they tell you to take it, right?
Q. Are you responsible for counting that money?
A. Sometimes. It depends on what building I am in. Like as of April I am in the Accounting Building, so I have been counting the money; but for two years prior to April, I was in the Collecting part of the office, so I was going out on the street collecting the money. When you collect the money, you just bring it in; you only count it when you are in the Counting Room.
Q. What do you do with the money?
A. It is a tin can. It is already in the telephone, when you pull it out, it automatically locks; then you put an empty can in.
Q. It is more complicated than I thought.
THE COURT: Now, then you have had previous jury duty?
A. I've been called five times.
A. About four years ago was the last time, that was the Daley Center.
Q. Did you sit on a case?
Q. What was the nature of the case you heard?
Q. So you were able, together with the other jurors, to decide it?
Q. So what I said about the presumption of innocence and proof beyond a reasonable doubt . . . the right to remain silent . . . are not new to you?
Q. So you answered every other question in the negative, right?
Q. And you say you have two children: one, 19, and one, 16?
Q. Did those children attend school in a neighborhood school of the city of Chicago?
Q. Can you say to Mr. Jurewicz and Mr. Smoke or Mr. Cannon, and to Mr. Groark and Mr. Perry on behalf of the People, that you can give each side a fair and impartial trial?
"PATRICIA J. WAGNER, was called as a prospective juror herein, having been first duly sworn, was examined and testified as follows: VOIR DIRE EXAMINATION
Q. Now, Patricia J. Wagner of Chicago, on the south side?
Q. And you are employed at the Chicago Ridge Nursing Center?
Q. You are a single woman?
Q. And you work at the Chicago Ridge Nursing Center -- I see you say an 'Activity Aid'?
Q. Now then tell us what you did in your occupation?
A. I am responsible for the residents to, you know, have different types of activities; to keep them busy, such as Bingo and just Discussion groups. I am under a director and write notices, and keep them busy, so they have things to do, and talk with them, and keep them company.
Q. How long have you worked there?
Q. What did you do prior to working at the nursing home?
A. I worked at the Central Community Hospital.
Q. Has all of your employment then been connected to the sick, convalescence, or aged in either hospitals or nursing centers?
A. No. It has been a variety.
Q. What other jobs have you had?
A. I worked as a switchboard operator, mail room clerk, I worked at Burger King -- I had quite a few different jobs.
Q. Did I ask you how long you had been in Chicago Ridge Nursing Center?
Q. Tell me once again. I am getting old and forgetful.
A. I have been there nine months.
Q. You live at home with your parents?
Q. And this is your first jury duty?
Q. You answered all of the questions, 'No' except that some member of the family or a friend had been the victim of a crime.
Q. So who was the person, and what was the offense.
A. It was my mother, and it was an offense when somebody had taken her purse and broken her arm in three different spots. It happened about two or three years ago, something like that.
A. About two or three years ago, I am not really sure how long ago it happened.
A. Yes, she went to the Emergency Room at Holy Cross but I didn't go to the hospital or anything like that.
Q. Did that happen in Chicago?
A. Yes, it happened at 66th and Artesian.
Q. Did the police accomplish anything for you?
A. They did not find anybody, no, but is was reported and everything.
Q. Was your mother capable of telling or describing the person that did it, if you know?
A. No, I am not really sure, because I was not there. I came home and found out that that happened, so --
Q. Well, would there be anything within that experience in the family that would inhibit you from giving a fair trial to Mr. Cannon?
Q. Well, you know now if you are selected to serve, you may have to take an oath to serve fairly and impartially, right?
Q. Do you know Mr. Jurewicz and his client, Mr. Cannon, will rely on you to live up to the terms of your oath, to be fair and to be impartial, as will Mr. Perry and Mr. Groark. So can you say now to them that you will be a fair and impartial juror?
A. I really don't feel that I should be on this case.
Q. Why? Because of what happened to your mother?
A. No, not because of that; because I am just unsure, you know.
A. Because I really -- I feel it is an important decision, you know, to say yes or say no. I am not really sure.
THE COURT: I am not sure I understand you. Very well, I will tender to the State Ms. Lally, Ms. Perkins, Mrs. Orzechowski, and Patricia Wagner.
MR. GROARK: With our thanks, the People would excuse Ms. Perkins and Ms. Wagner.
THE COURT: All right. Thank you.
"KENDRICK P. GUENO, was called as a prospective juror herein, having been first duly sworn, was examined and testified as follows: VOIR DIRE EXAMINATION
Q. Now, Mr. Kendrick P. Gueno.
Q. You live in Chicago, and I guess in the area of -- or that is better known as Beverly?
A. Beverly -- Morgan Park.
A. Beverly -- Morgan Park.
Q. Beverly Hills, they don't use that in Beverly, do they? That is ...