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09/22/88 the People of the State of v. Robert Mcdonald Et Al.

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

ROBERT MCDONALD ET AL., APPELLANTS. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

MARK HICKS, APPELLANT



SUPREME COURT OF ILLINOIS

530 N.E.2d 1351, 125 Ill. 2d 182, 125 Ill. Dec. 781 1988.IL.1405

Appeals from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Stephen M. Kernan, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court. CUNNINGHAM and STAMOS, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendants, Robert McDonald, Rodney Burts and Mark Hicks, were indicted in St. Clair County for the rape and aggravated kidnapping of a Collinsville woman. By separate indictment, Burts was charged with an additional count of rape. (See Ill. Rev. Stat. 1983, ch. 38, pars. 10-2(a)(5), 11-(1)(a).) All of the defendants were tried before the same jury and were found guilty on all charges. Defendants McDonald and Hicks were each sentenced to terms of 25 years for rape and 15 years for aggravated kidnapping, to run concurrently. Defendant Burts was sentenced to terms of 35 years and 20 years, respectively, on the two rape counts, and a term of 15 years for aggravated kidnapping, all to run concurrently.

Defendants appealed their convictions, alleging, among other things, that the State unconstitutionally exercised its peremptory challenges to exclude blacks from the jury. The appellate court affirmed the convictions. 139 Ill. App. 3d 1167 (unpublished order under Supreme Court Rule 23).

In cause No. 63204, defendants McDonald and Burts filed a petition for leave to appeal in this court. In cause No. 63240, defendant Hicks separately filed a petition for leave to appeal in this court. The court allowed both petitions and consolidated the appeals.

On April 30, 1986, while the defendants' appeals were pending in this court, the United States Supreme Court released its opinion in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. The Court held that a defendant may rely solely on evidence concerning the selection of the jury at his own trial to establish that a prosecutor has unconstitutionally exercised peremptory challenges against potential jurors solely on account of race. (Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722.) The Court subsequently held that Batson was retroactively applicable to all cases pending on direct review when the decision was announced. Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716.

In light of the Batson and Griffith decisions, we issued a supervisory order in this case on May 1, 1987. In that order, we retained jurisdiction of this cause and directed the trial court to conduct an expedited hearing to permit the defendants to present evidence to substantiate their claim of unconstitutional discrimination in the exercise of peremptory challenges. Our supervisory order also stated that if the trial court found that a prima facie showing of such discrimination had been made, it should then determine whether or not there is a neutral explanation by the State for the exercise of the questioned peremptory challenges. The court conducted the hearing on June 4, 1987, and found that the State had improperly excluded black veniremen solely on account of their race.

On return to this court, the issue presented for review as to all defendants is whether the trial court's finding that blacks were excluded from the jury in violation of Batson was erroneous. Defendant Hicks also raises two additional issues in his appeal: whether the seizure of physical evidence from him was valid when it was seized after he was taken into custody on a traffic arrest which was never prosecuted; and whether the evidence presented was sufficient to prove him guilty beyond a reasonable doubt. Defendants McDonald and Burts do not contest the sufficiency of the evidence as to their convictions.

The facts which are relevant to our resolution of the issues raised by defendant Hicks are as follows. The victim testified that on the evening of October 21, 1983, she was in her car in the parking lot of her place of employment. She stated that while in her car, three black men in a white Oldsmobile Cutlass pulled alongside her car. Thinking that they might need directions, she rolled her window down. The victim testified that one of the men approached her car carrying a gun. The victim rolled the window of her car up; however, the man, whom the victim later identified as defendant Burts, fired a shot through the window, unlocked the door to her car, and forced his way into the vehicle.

The victim testified that defendant Burts drove her car out of the parking lot and the Cutlass followed behind them. The victim stated that she was driven to a vacant lot, where defendant Burts parked the car, and the Cutlass pulled in behind them. The victim testified that defendant Burts then raped her. She further testified that while defendant Burts raped her, the other two men stood talking at the back of her car. She stated that she could not hear what they were saying but did hear one of the men call the other "Mark."

The witness stated that after defendant Burts raped her, he placed a jacket over her head, telling her not to look at the other men "because they were crazy and would kill" her. Defendant Burts exited the car, and another man entered the car and forced her to perform fellatio on him. Then the third man raped her. The victim stated that while she was being assaulted by each of the men, the other two would stand at the back of the car. She further testified that during the attack, she was asked by the assailants how to get into the trunk and how to open the gas cap.

The victim testified that after the assaults, the two men in the Cutlass drove away; however, defendant Burts drove her to East St. Louis, and drove around a particular block three or four times, stopping in front of the same house each time. The victim stated defendant Burts eventually drove to the parking lot of a school in East St. Louis and raped her again before leaving. The victim stated that the police were waiting for her when she returned home, and she was taken to the hospital for treatment.

Michael Fitzpatrick, a forensic scientist with the Illinois Department of Criminal Investigation, testified on behalf of the State. He testified regarding the fingerprint comparisons he made between the latent prints found on the outside of the victim's car, and the fingerprints taken from defendants after their arrest. Fitzpatrick testified that seven prints from defendant Hicks' middle finger, five prints from Hicks' right ring finger and one print each from Hicks' right little and right index fingers were found on the driver's side roof of the victim's car. Fitzpatrick also stated that two prints from Hicks' right thumb and one print each from Hicks' right palm, right index and right middle fingers were found on the left rear window support of the victim's automobile. Fitzpatrick further testified that a print from defendant Hicks' left thumb was found on the center of the driver's side door below the window of the victim's automobile, and that one print each from Hicks' left little finger and left ring finger were found on the left rear fender above the gas cap. Finally, a print from defendant Hicks' right palm was ...


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