SUPREME COURT OF ILLINOIS
518 N.E.2d 78, 119 Ill. 2d 61, 115 Ill. Dec. 553 1987.IL.1890
Appeal from the Circuit Court of St. Clair County, the Hon. Patrick J. Fleming, Judge, presiding.
CHIEF JUSTICE CLARK delivered the opinion of the court. SIMON and CUNNINGHAM, JJ., took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
Following a jury trial in the circuit court of St. Clair County, the defendant, Girvies Davis, was convicted of the murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1)) of Charles Biebel. In a hearing requested by the People, the jury found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)) and that there were no mitigating circumstances sufficient to preclude a sentence of death. The jury returned a verdict directing that the defendant be sentenced to death, and the circuit court entered judgment on the verdict. On direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 87 Ill. 2d R. 603), the conviction was affirmed (People v. Davis (1983), 95 Ill. 2d 1 (hereinafter referred to as Davis I)). This court denied rehearing, and the Supreme Court denied the defendant's petition for certiorari. (Davis v. Illinois (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507.) The defendant then filed in the circuit court a verified three-count petition under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.) The circuit court allowed the People's motion to dismiss the petition without a hearing, and the defendant appealed directly to this court. 107 Ill. 2d R. 651(a).
The facts relating to the crime of which the defendant was convicted are set forth in Davis I, and need not be repeated in detail. It is enough to say that the victim, Charles Beibel, was shot to death in his home. Several guns and two watches, along with a television set and a billfold, were missing from his home after his death. A witness who was an admitted "fence" testified that the defendant negotiated the sale of one of the stolen guns to the witness, and that the defendant's codefendant actually delivered it to him. After his arrest, the defendant admitted participation in the robbery but claimed that his codefendant had actually shot the victim. He also confessed to participation in two other killings. The theory of the defense was that the defendant had learned the details of all three killings from two men with whom he shared a cellblock, and that he falsely confessed to the crimes for some unknown reason.
The defendant's post-conviction petition contains three claims: (1) that his conviction must be reversed because the prosecution used its peremptory challenges to exclude black jurors from his jury, (2) that his sentence of death was unconstitutional because his statutory eligibility for death arose from convictions for crimes which occurred after the Biebel homicide, and (3) that his sentence of death was unconstitutional because it was based upon his victim's race. On this appeal, the defendant does not challenge the dismissal of the second claim. We consider both of the remaining claims in turn.
The defendant's first claim is that the prosecution's use of peremptory challenges to exclude three black veniremen from the jury violated his right to a fair trial. In response, the State claims that this issue has been waived.
To withstand a motion to dismiss and merit a hearing under the Post-Conviction Hearing Act, the petition must make a substantial showing that the petitioner's constitutional rights have been violated. (People v. Rose (1969), 43 Ill. 2d 273, 279-80.) We need not consider the waiver issue because it is now clear that the defendant cannot make a substantial showing of a violation of his Federal constitutional rights.
A great deal of water has passed under the bridge since the circuit court dismissed this claim. The United States Supreme Court has now held that a prosecutor's use of peremptory challenges to exclude blacks from a jury trying a black defendant may be the basis for an equal protection claim of purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 97-98, 90 L. Ed. 2d 69, 88-89, 106 S. Ct. 1712, 1723-24.) Following Batson, the Supreme Court held that its rule applies to cases pending on direct review at the time Batson was decided (Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708), but not to cases on collateral review (Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878). Since this case was not pending on direct appeal at the time Batson was decided, Batson is inapplicable, and the circuit's court's dismissal of this count of the petition must be affirmed.
As to the second claim, these are the pertinent facts. The defendant is black. The victim was white. In his petition, the defendant asserts that the victim's race made it more likely that he would receive a death sentence, and that his sentence therefore violates his rights to due process, equal protection, and freedom from cruel and unusual punishment under both the State and Federal Constitutions. (U.S. Const., amends. VIII, XIV; Ill. Const. 1970, art. I, § 2.) In support of this contention
The defendant argues that the circuit court erred in dismissing his petition without a hearing, and that at the hearing he would have adduced expert testimony as to the validity of the Gross study's data, methodology, and Conclusions. He argues that he was precluded from raising this issue on direct appeal because of the previous unavailability of the Gross study or of any other statistical analysis of the application of the death penalty in Illinois.
The State argues that the dismissal was proper because the defendant failed to raise this argument on his direct appeal. To the defendant's argument that the issue was not presented in the direct appeal because neither the Gross study nor an equivalent study was available at that time, the State responds that several comparative studies were available at the time the defendant filed his original appeal. (See, e.g., Baldus, Pulaski, Woodworth, & Kyle, Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stanford L. Rev. 1 (1980); Reidel, Discrimination and the Imposition of the Death Penalty: A Comparison of the Characteristics of Offenders Sentenced Pre-Furman and Post-Furman, 49 Temp. L.Q. 261 (1976); Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981); Bowers & Pierce, Arbitrariness and Discrimination under Post-Furman Capital Statutes, 26 ...