APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
513 N.E.2d 852, 159 Ill. App. 3d 991, 112 Ill. Dec. 243 1987.IL.1210
Appeal from the Circuit Court of Cook County; the Hon. Donald E. Joyce, Judge, presiding.
Rehearing Denied September 17, 1987.
PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN
Following a jury trial defendant was found guilty of one count of murder and three counts of armed robbery and was sentenced to serve concurrent terms of 60 years for murder and 30 years for armed robbery. On appeal, his court-appointed counsel *fn1 contends that the cause must be remanded for a hearing under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to determine whether the prosecutor used his peremptory challenges to exclude blacks from the jury merely because of their race; that defendant was denied his sixth amendment right to a jury drawn from a representative cross-section of the community; that defendant was not proved guilty beyond a reasonable doubt; that the prosecutors made improper and inflammatory arguments; and that the sentences are excessive.
Robert Hampton and Wilbert Shipp testified that shortly after 9:30 a.m. on September 3, 1984, they were helping Shipp's stepson, Danny Turner, and their friend, Dan Williams, pull Hampton's van out of his garage at 7009 South Lowe in Chicago to make room for Williams' automobile when defendant entered the garage holding a .38 Smith & Wesson bluesteel revolver and announced a robbery. Defendant ordered the men to lie on the floor and empty their pockets. Hampton and Shipp complied and placed their money on the floor of the garage in front of them. Williams, however, threw his change on the floor. Angered by this action, defendant ordered Williams to remove his wallet. Williams took his wallet out of his pants and threw it toward defendant, who said, "Son of a bitch, you thinking I'm playing with you, don't you. I'm not playing with you. You get up and walk out that back door." Defendant walked with Williams to the rear door of the garage and shot him once in the back of the head, killing him instantly. Defendant then collected the money that had been placed on the floor and fled.
Hampton estimated that the robbery took only a few minutes; Shipp thought they were on the floor for 15 to 20 minutes. Both testified that they saw defendant while they were standing in the garage and that they continued to look at him and his gun after he ordered them to lie on the floor. The garage was illuminated by natural and artificial light. Hampton and Shipp gave a detailed description of the offender and his clothing to the police. Approximately 10 days after the incident, Hampton and Shipp selected defendant's photograph from an array of 15 photographs and thereafter identified defendant in separate lineups. Danny Turner, who was not able to make a positive identification of defendant, did not testify.
Upon his arrest, defendant denied that he was the offender and told the police that he had left his apartment at 6632 South Lowe between 9 and 10 a.m. on September 3, 1984, and walked to a home for the elderly at 65th and Lowe to cut hair. His customer was not home and defendant delivered some brake shoes to an address on South Halsted. He cut hair later in the afternoon until 2 or 3 p.m. After he was identified in the lineups, defendant gave another statement to the police and an assistant State's Attorney in which he said that he was at home with his mother and her friend, Willie Williams, until 11 a.m. on September 3, 1984, when he left to cut hair.
The police searched the apartment of Ella Johnson, defendant's common law wife, at 2309 East 79th Street, between 10 and 11 p.m. on September 14, 1984; defendant refused to allow the police to search his apartment until after he called his sister from the police station. No evidence connecting defendant with the crimes was found at either address.
Defendant presented an alibi defense, which was corroborated by his mother and Willie Williams. Another witness, Willie Woodridge, testified regarding defendant's whereabouts several hours after the shooting.
Defendant initially contends that this case must be remanded for a hearing under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to determine whether the prosecutor used his peremptory challenges to exclude blacks from the jury merely because of their race. We agree.
In Batson, the Supreme Court held that 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 group and that the prosecutor used peremptory challenges to remove members of his race from the jury panel. The defendant must then show that 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 its challenges. The circuit court must then determine whether the defendant has proved purposeful discrimination. (476 U.S. 79, 98, 90 L. Ed. 2d 69, 88-89, 106 S. Ct. 1712, 1723-24.) Batson applies to all cases pending on direct review at the time it was decided. Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.
In the case at bar, the record discloses that after two panels of jurors were selected and sworn, and the State had tendered the final panel to the defense, defense counsel objected and argued that the prosecutor had used six of nine peremptory challenges to excuse six of the seven black veniremen who had been questioned up to that point. The court overruled this objection, noting that the prosecutor had accepted one black man on the first panel. Defendant's motion for a new trial alleged that the prosecutor had used 8 of his 11 peremptory challenges against black veniremen. On the basis of this record, defendant argues that he is entitled to a Batson hearing. The State responds that defendant has waived this issue by not establishing the racial composition of the final jury and that defendant failed to make the prima facie showing required by Batson. We disagree.
Although the record does not reflect the exact racial composition of the jury actually chosen, it appears that, at most, two black jurors were accepted by the State, which used its peremptory challenges to excuse eight other black veniremen. Batson, however, does not require complete exclusion of a racial group to prove discrimination. (People v. Seals (1987), 153 Ill. App. 3d 417, 422-23, 505 N.E.2d 1107, 1111 (Batson hearing required where prosecutors used 6 of 10 peremptory challenges against blacks even though one black served on the jury).) Otherwise, as the court noted in Fleming v. Kemp (11th Cir. 1986), 794 F.2d 1478, 1483, prosecutors could allow one or two black jurors to serve on the jury to immunize their other challenges.
A prima facie case of discrimination has been found to exist where the State used all seven of its peremptory challenges against blacks, even though three blacks served on the jury (People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422) and where the State used seven of its eight peremptory challenges against blacks to produce a jury which included only two blacks (People v. Johnson (1986), 148 Ill. App. 3d 163, 504 N.E.2d 502).
We need not decide whether defendant has established a prima facie case of racial discrimination. Defendant was tried before Batson was decided. On May 1, 1987, the Illinois Supreme Court remanded a series of pre- Batson cases for hearings pursuant to that decision. Specially Concurring with these supervisory orders, Justice Ryan stated that it would be "manifestly unfair" to evaluate a defendant's claim of discriminatory use of peremptory challenges by the State on a record made before the requirements of Batson were established. According to Justice Ryan, with whom Justices Ward and Moran concurred, a defendant is entitled to return to the trial court and ...