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06/14/88 the People of the State of v. Hector Rivera

June 14, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HECTOR RIVERA, DEFENDANT-APPELLANT



Before a prima facie case of racial discrimination under Batson can be established, the record must reflect the racial composition of the jury and the race of the veniremen peremptorily challenged by the prosecutor. (People v. Partee (1987), 157 Ill. App. 3d 231, 268, 511 N.E.2d 1165.) In addition, a defendant must articulate why he believes that the challenge of a juror was evidence of discrimination in jury selection. (People v. Chevalier (1987), 159 Ill. App. 3d 341, 350, 512 N.E.2d 1001.) Here, defendant relied solely upon the fact that two persons with Spanish surnames had been peremptorily excused by the prosecutor, i.e., Miss Sanchez and Mr. Rojos. While the transcript of the voir dire does establish that Mr. Rojos was Hispanic, it did not suggest the racial origin of Miss Sanchez, and no evidence was offered to establish she was Hispanic, other than her surname.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

531 N.E.2d 372, 176 Ill. App. 3d 781, 126 Ill. Dec. 77 1988.IL.927

Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendant, Hector Rivera, was convicted by a jury of murder, and the trial court imposed a sentence of mandatory natural life imprisonment pursuant to section 5-8 1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(c)). When the appeal first came before this court the cause was remanded to the trial court with directions that it conduct a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to permit defendant to present evidence to substantiate his claim that there had been purposeful discrimination by the prosecutor in his use of peremptory challenges to exclude members of defendant's Hispanic race from the jury. (People v. Rivera (1987), 160 Ill. App. 3d 214, 513 N.E.2d 584.) After the hearing, the trial court ruled that defendant had failed to establish a prima facie case of such discrimination and the State was thus not required to come forward with a neutral explanation for its peremptory challenges. We retained jurisdiction in the initial appeal to review the determination of the trial court, and both the State and defendant have filed supplemental briefs, together with the record of the "Batson hearing," in this court.

Defendant contends in his supplemental brief that: (1) the trial court erred in not finding that a prima facie case of discrimination had been established; and (2) since defendant was represented in trial by a black attorney, the trial court should have considered whether the prosecutor by peremptory challenge excluded blacks from the jury for discriminatory purposes. We will also address the issues raised by defendant in his original brief: (3) whether the State's use of peremptory challenges to remove minority jurors denied his sixth amendment right to a jury drawn from a fair cross-section of the community; (4) whether the State established defendant's guilt beyond a reasonable doubt; (5) whether the use of perjured testimony before the grand jury deprived the defendant of due process; (6) whether he was denied a fair trial because the trial court sanctioned lying under oath by a prospective juror; and (7) whether the statutory requirement for imposition of a mandatory life sentence violates due process and constitutes cruel and unusual punishment.

As pertinent to these issues, the record discloses that William Price, a Department of Corrections investigator at Stateville Correctional Center, testified before the grand jury relating to the participation of the defendant and his codefendant, Domingo Perez, in the killing of another inmate, Richard Cook. Officer Price's testimony related to the stabbing of Richard Cook during the showing of a movie to inmates at the correctional center and was based upon his investigation of the incident. Price had interviewed numerous witnesses during his investigation and also testified as to statements made by codefendant Perez. Officer Price stated that Perez had confessed to the stabbing of Cook and had implicated defendant in the killing. After Officer Price completed his testimony, the State recalled him before the grand jury to correct some misstatements in his testimony.

During jury selection, juror Dennis Jeglinski was examined in chambers concerning a traffic citation for which he had been placed on court supervision. The trial court told Jeglinski that during voir dire in open court, he could give a negative response to the court's question concerning prior arrests.

At trial, David Walker, a lieutenant at Stateville Correctional Center, testified that on the evening of April 16, 1981, a movie was shown to inmates in the gymnasium of the correctional center. Officer Walker observed nothing unusual during the movie, but afterwards he saw inmates coming back into the gym. He went out of the gym into the tunnel to see what the problem was and observed another officer assisting an inmate, Richard Cook, who appeared to be injured. Cook went over to Domingo Perez, another inmate, pointed his finger at Perez and said, three times, "That is one of them right there." Cook began to fight with Perez but fell to the floor and was taken to the hospital.

Estee Hall, a captain of Stateville Correctional Center, testified that he heard noise in the main tunnel and, on investigating, observed Cook, who was bleeding from his chest. Cook came toward Officer Hall and pointed at defendant saying, "That is one of the son of a bitches who attacked me." According to Officer Hall, six or seven other inmates were standing behind defendant at the time Cook identified him. Officer Hall's report of the incident, however, stated that Cook was pointing in the direction of 15 individuals and did not mention that Cook pointed at defendant, saying that he was one of the persons who attacked him. Officer Hall also testified that he saw no blood on the defendant and no knife was recovered from him.

Anthony Beamon, an inmate at Stateville Correctional Center, testified that he observed Cook come out of the gym after the movie followed by seven Hispanic inmates. Beamon identified some of these men as Perez, whom he knew as Crazy Man, defendant, whom he knew as Spaulding, and men whose nicknames were Bogart and Gypsy. He said defendant was wearing blue pants and a yellow shirt. The Hispanic inmates surrounded Cook and began to stab him. Beamon testified that he saw three or four knives, and that defendant, Perez, and Bogart each had one. After the stabbing, these men ran out of the tunnel. Beamon stated that he was less than 50 feet from the group when they stabbed Cook and that defendant and his companions came close enough to him that they almost knocked him down.

Jason Davis, a lieutenant at Stateville Correctional Center, testified that when he went to investigate a loud noise in the tunnel he saw Cook coming towards defendant. Seven Latin inmates and one black inmate were standing behind defendant. Cook, who was bleeding profusely, pointed at defendant and shouted: "Get him. He's the one that did it." While moving toward defendant, Cook said, "Get him, the one in the black hat." Officer Davis testified that the one inmate in the crowd wearing a hat was defendant, although his report of the incident did not mention that Cook said anything about a hat. Officer ...


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