APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
512 N.E.2d 1001, 159 Ill. App. 3d 341, 111 Ill. Dec. 460 1987.IL.1128
Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
Defendant was charged with aggravated battery in connection with the shooting of Stephen Reid. A black venireman was a member of the first panel of four questioned by the State. The venireman stated that he was unemployed and divorced. He did not know anyone at the State's Attorney's office, had no pending litigation, no connection with law enforcement, and did not know the defendant or victim. He would eliminate sympathy and bias from his decision and would follow the trial court's instructions. He had never been the victim of a crime. The prosecutor challenged the venireman. Defense counsel objected to the challenge and asked for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.
The trial court excused the venireman, telling counsel that it would discuss the hearing at a recess. Defense counsel requested an immediate hearing. The court agreed and stated the venireman had been challenged on a number of juries. The court then stated that unemployment could be considered by counsel and noted that several black jurors had served on trials conducted by the prosecutor that week. Defense counsel argued unemployment was not a valid reason to peremptorily challenge a juror and the prosecutor was required by Batson to justify the peremptory challenge. The prosecutor noted that defendant had to raise an inference of improper motivation prior to the State's being obligated to justify the challenge. Defense counsel stated that he would proceed if he could have the hearing.
The court noted that previous juries selected by the prosecutor had contained minorities and the venireman in question had been excused from other cases. Subsequently, the trial court noted that a black woman was serving on defendant's jury. This refuted defendant's argument that black persons were automatically disqualified. The court denied the objection.
Defense counsel, during voir dire, moved that the trial court dismiss for cause eight jurors who had served on juries within the past year, including those members of the present impanelment who had been on juries within the last two weeks. The court refused to grant a challenge for cause for this reason.
Prior to defendant's use of his seventh peremptory challenge, the State exercised an eighth peremptory challenge. Defendant contended the State had exceeded its allowable peremptories. Defense counsel asked the court to recall the excused juror. The court refused to do so. The Judge stated that he was exercising his inherent powers in extending the seven peremptory challenges allowable by the supreme court rule to eight in the instant case. The court stated it had misled the prosecution previously and requiring the prosecutor to recall an excused juror would place him in an untenable position. Defense counsel exercised seven peremptory challenges. The court later noted that defense counsel had refused to exercise an eighth peremptory challenge. The court denied defense counsel's motion for a mistrial based upon the prosecutor's use of eight peremptory challenges.
Stephen Reid testified that during the early afternoon hours of April 13, 1986, he was visiting friends and drank four beers. He then went home, where he ate dinner. He remained at his house for approximately 1 1/2 hours, during which time he did not drink any liquor. At about 9:30 p.m., while Reid was walking to a friend's house, he was shot by a person standing across the street in a group of four or five people. It was dark and the street had few lights. Reid identified defendant as his assailant and also recognized other members of the group. Reid could see fire coming from the gun as defendant shot it.
After Reid identified defendant, the following exchange occurred:
"Q. Are you . . . now, you had been drinking that night, and it was a bit dark, are you sure ...