APPELLATE COURT OF ILLINOIS, SECOND DISTRICT 1987.IL.1152
522 N.E.2d 86, 168 Ill. App. 3d 405, 118 Ill. Dec. 631
Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding
Supplemental opinion filed April 15, 1988
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Shirley Buckley, was found guilty by a jury in the circuit court of Lake County of robbery, armed robbery, armed violence, and unlawful use of weapons. (Ill. Rev. Stat. 1985, ch. 38, pars. 18-1, 18-2, 33A-2, 24-1(a)(4).) She received concurrent sentences of 15 years' imprisonment each for armed violence and armed robbery and five years for unlawful use of weapons.
She contends (1) the court erred in denying her a hearing upon her allegation that the prosecutor used peremptory challenges to exclude blacks from her jury; (2) the court's refusal to enforce its order directing Mitchell McGee to appear so that he could be called as a defense witness denied her her right to compulsory process and a fair trial; and (3) the judgment of conviction for robbery and the judgments and sentences for armed robbery and unlawful use of weapons must be vacated because they were based on the same act as the armed violence conviction and sentence.
Because we find the cause must be remanded for further proceedings in the trial court on the basis of the first issue raised by the defendant, we do not address her second and third issues as those may be obviated after the remand.
At the Conclusion of the voir dire, the defendant moved for a discharge of the venire asserting that the assistant State's Attorney had used his peremptory challenges for the purpose of excluding blacks from her jury. Noting that there were four black people in the venire and that the State used three out of six peremptory challenges to exclude three of those four black veniremen, defense counsel objected to what he considered to be the State's systematic exclusion of black jurors.
The assistant State's Attorney stated that he "basically [had] no response," asserting that the defendant must show the exclusions were done systematically. Further, he noted that a black person had been impanelled on the jury and that the State has the right to exercise its peremptory challenges as it sees fit based upon biographical information contained in the jurors' profiles as well as questions and answers.
The trial Judge agreed there must be a systematic excusing of a particular race based on more than what has occurred in a single jury selection. He further stated he felt the exclusions could not be considered systematic in view of the fact one of the black veniremen was selected for the jury.
Defense counsel opined that the reason the fourth black venireman was impanelled was perhaps attributable to the fact the venireman had a relative who was an assistant State's Attorney. As to the three jurors who were peremptorily excused, the defense counsel stated he felt there was nothing about them or their backgrounds which would cause the exercise of a peremptory challenge to excuse them.
The trial Judge again stated he could not see that there was a systematic exclusion "where there's at least one here." The Judge speculated further that even if all four of the black veniremen had been excused, there could be a good reason behind the assistant State's Attorney's challenges. In any case, the court observed that it was not "entitled to look behind [the peremptory challenge] for the reasons unless there is a systematic exclusion, and [that] takes more than one case."
The court denied defendant's motion to discharge the venire and to request the assistant State's Attorney to state the reason for excusing the three black veniremen. Subsequently, the court also denied defendant's post-trial motion which included this issue.
It is clear the basis for the court's denial of the defendant's motions was the suggestion in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, which has been adhered to in Illinois (see, e.g., People v. Payne (1983), 99 Ill. 2d 135, cert. denied (1984), 469 U.S. 1028, 83 L. Ed. 2d 372, 105 S. Ct. 447; People v. Williams (1983), 97 Ill. 2d 252, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364), that only a showing of the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue.
However, in April 1986, the United States Supreme Court overruled Swain in part in its decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Under Batson, a defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial, rather than on a case-after-case basis. In order to establish such a case, the defendant first must show that he or she is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may then rely on the fact that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' [Citation.]" (Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1723.) The defendant must then show that these facts and any ...