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09/29/88 the People of the State of v. Johnnie Lee Evans

September 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JOHNNIE LEE EVANS, APPELLANT



SUPREME COURT OF ILLINOIS

530 N.E.2d 1360, 125 Ill. 2d 50, 125 Ill. Dec. 790 1988.IL.1478

Appeal from the Circuit Court of Cook County, the Hon. Joseph J. Urso, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendant, Johnnie Lee Evans, was indicted in the circuit court of Cook County on three counts of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), one count of attempted rape (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 11-1), and two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2) against Adrian Allen in violation of the Criminal Code of 1961. The armed violence counts were subsequently nol-prossed by the State. Defendant was tried by a jury and found guilty on the remaining counts of murder and attempted rape. Defendant waived his right to a jury at the separate bifurcated death sentencing hearing. The trial court found that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death on the murder charges and to a 30-year extended term of imprisonment on the attempted rape charge. Defendant's post-trial motion was denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).

During the pendency of defendant's appeal, the United States Supreme Court issued its decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Batson held that a prosecutor cannot exercise peremptory challenges to exclude veniremen solely on account of race and that a defendant may show such purposeful discrimination based solely on the facts in his own case. Subsequently, in Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, the United States Supreme Court held that Batson is retroactively applicable to cases pending on direct appeal at the time Batson was decided.

In light of the Batson and Griffith decisions, we issued a supervisory order on May 1, 1987, wherein we retained jurisdiction of this cause and remanded the case to the trial court to "permit the defendant to present evidence to substantiate his claim of unconstitutional discrimination in the exercise of peremptory challenges," at a hearing to be conducted in accordance with Batson. If the trial court found a prima facie showing of discrimination, it was directed to determine whether there were race-neutral explanations for the challenges. The trial court conducted a Batson hearing on July 13, 1987, and found that defendant had failed to establish a prima facie case of purposeful discrimination by the State in the selection of the jury.

On return of the case to this court, defendant raises numerous issues, alleging evidentiary and constitutional errors at all stages of the proceedings. We shall address each in turn.

The evidence reveals that on January 22, 1983, the victim, a 16-year-old black woman, was stabbed to death in an elevator at 3547 South Federal, a building in a Chicago Housing Authority complex. She had been stabbed 22 times and her body was found face down in a pool of blood with her coat opened, her shirt pulled up to her shoulders and her pants pulled down to her ankles. Further facts will be detailed as they become relevant to the issues addressed.

The first issue: Was the trial court's finding that defendant failed to establish a prima facie case of racial discrimination under Batson erroneous?

The evidence from the original transcript of voir dire indicates that the State peremptorily challenged 17 veniremen, 5 of whom were black. The State also peremptorily challenged two alternate jurors, one of whom defendant asserts was black. During the course of the voir dire, defendant moved to dismiss the venire on several occasions, claiming that the State was improperly excluding "black males" from the jury. Defendant did not allege as error the State's exercise of a peremptory challenge to remove a black female from the jury. The trial court found that there was no purposeful, systematic or improper exclusion of jurors.

The record further reveals that, on remand, defendant submitted a stipulation, entered into between defense counsel and the State, which pertained to the composition of the jury and the State's use of peremptory challenges. The stipulation indicated that two blacks served on defendant's jury, and that five blacks were peremptorily challenged by the prosecution. The defense put in no other evidence. At the Conclusion of the Batson hearing, the trial court found, after considering all of the relevant circumstances, that defendant failed to establish a prima facie case of racial discrimination.

Initially, we note that defendant has waived any right to assert that the female black venireperson, Mary Patton, was improperly stricken from the jury by the prosecutor. Batson requires that the defendant make a timely objection to the prosecutor's peremptory challenge. (Batson, 476 U.S. at 99, 90 L. Ed. 2d at 89-90, 106 S. Ct. at 1724.) The peremptory challenge of Mary Patton was never objected to by the defense, either at trial or in post-trial motions. We do not believe that an objection occurring after the jury is sworn can be deemed timely. Therefore, as the defense has objected to the challenge against Mary Patton for the first time on appeal, that particular objection has been waived. People v. Stewart (1984), 104 Ill. 2d 463, 488, cert. denied (1985), 471 U.S. 1120, 86 L. Ed. 2d 267, 105 S. Ct. 2368; see also State v. Peck (Tenn. Crim. App. 1986), 719 S.W.2d 553, 555 ("After a party has assured the court that the jury as empaneled is acceptable, the party will not be heard to complain of the makeup of the jury panel").

Similarly, defendant has waived the right to assert that Bobby Benford, the alternate juror, was improperly peremptorily challenged by the State. Although this juror was mentioned in the defendant's motion for a prima facie finding of discrimination submitted at the Batson hearing, his name was stricken from the roster of excluded blacks set forth in the evidentiary stipulation submitted to the court. There is no independent evidence whatever in the record to establish the race of this juror. Therefore, defendant's objection as to this challenge of Benford is also waived. (See People v. Wheeler (1978), 22 Cal. 3d 258, 280-81, 148 Cal. Rptr. 890, 905, 583 P.2d 748, 764.) Accordingly, when determining whether defendant has established a prima facie case of discrimination, we may consider only the remaining four black venirepersons who were excluded.

In Batson the Court reaffirmed the principle "that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposely excluded." (Batson, 476 U.S. at 85, 90 L. Ed. 2d at 80, 106 S. Ct. at 1716.) In so holding, the Court rejected the evidentiary standard previously enunciated in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, which required a defendant to show "the prosecutor's systematic use of peremptory challenges against Negroes over a period of time" in order to establish an equal protection claim. (Swain v. Alabama (1965), 380 U.S. 202, 227, 13 L. Ed. 2d 759, 776, 85 S. Ct. 824, 839.) Under Batson a defendant may now rely solely on the evidence concerning the prosecutor's exercise of peremptory challenges at his own trial in order to establish a prima facie case of discrimination. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722.

Establishing a prima facie case requires defendant to first show that he is a member of a cognizable racial group and that the State has exercised peremptory challenges to remove from the venire members of that racial group. Second, the defendant is entitled to rely on the fact that peremptory challenges constitute a jury-selection practice that permits those to discriminate who are of a mind to discriminate. Finally, defendant must show that these facts and "any other relevant circumstances" raise an inference that the prosecutor peremptorily challenged veniremen on account of their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.

Defendant has met the first element of the Batson test for establishing a prima facie case of discrimination. Defendant is black and the prosecutor exercised peremptory challenges to remove from the venire members of defendant's race. Thus, the only question is whether, considering "all relevant circumstances," defendant has established a prima facie case of discrimination.

The relevant circumstances the trial court may consider when determining whether there was discrimination include: a "pattern" of strikes against black jurors; "the prosecutor's questions and statements during voir dire examination and in exercising his challenges" (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723); the disproportionate use of peremptory challenges against blacks (State v. Gilmore (1986), 103 N.J. 508, 535-36, 511 A.2d 1150, 1164; People v. Wheeler, 22 Cal. 3d at 274-75, 583 P.2d at 760, 148 Cal. Rptr. at 901-02); the level of black representation in the venire as compared to the jury (Batson, 476 U.S. at 93, 90 L. Ed. 2d at 85, 106 S. Ct. at 1721; Aldridge v. State (1988), 258 Ga. 75, 365 S.E.2d 111); whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic (People v. Wheeler, 22 Cal. 3d at 280, 583 P.2d at 764, 148 Cal. Rptr. at 905); the race of the defendant and victim (Fields v. People (Colo. 1987), 732 P.2d 1145, 1156; Commonwealth v. McKendrick (1986), 356 Pa. Super. 64, 77, 514 A.2d 144, 151, appeal denied (1987), 514 Pa. 629, 522 A.2d 558; Commonwealth v. Soares (1979), 377 Mass. 461, 490-91, 387 N.E.2d 499, 517, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170); and the race of the witnesses (United States v. Mathews (7th Cir. 1986), 803 F.2d 325, 332, rev'd on other grounds (1988), 485 U.S. , 99 L. Ed. 2d 54, 108 S. Ct. 883). Simply because black veniremen are peremptorily challenged does not, without more, raise the specter or inference of discrimination. Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725 (White, J., Concurring) (it is not unconstitutional, without more, to strike one or more blacks from the jury); People v. Hooper (1987), 118 Ill. 2d 244, 247-49 (Ryan, J., specially Concurring) (the court must avoid arbitrarily deciding this delicate question solely from the number of blacks peremptorily challenged); Phillips v. State (Ind. 1986), 496 N.E.2d 87, 89 (use of peremptory challenges against black jurors does not, by itself, raise an inference of racial discrimination).

Considering these circumstances in light of the actual facts of this case, we conclude that the trial court's finding that defendant failed to establish a prima facie case of discrimination was not against the manifest weight of the evidence. The trial court at the Batson hearing on remand found no pattern to the State's use of peremptory challenges against black jurors which would show purposeful discrimination. Defendant has not presented any evidence to the contrary. The trial court, not the prosecutor, conducted the voir dire, and defendant does not contend on appeal, nor did he at trial, that the prosecutor's statements in exercising peremptory challenges indicated that the challenges were discriminatory.

Moreover, we cannot conclude that the State used a disproportionate number of peremptory challenges to exclude blacks from the jury. Even assuming that the prosecutor excused six blacks, including the two jurors as to whom defendant has waived his Batson challenge, the prosecutor excused twice as many nonblacks.

Furthermore, the level of black representation in the venire as compared to the jury does not indicate purposeful discrimination by the State. Two blacks served on the jury. Not including those veniremen excused for cause, the venire for jurors and alternates was composed of 55 individuals. The percentage of blacks in the venire (including, for the sake of argument, Patton and Benford) was 14.5%. The jury as empaneled was 16.66% black.

Defendant contends that the excluded black jurors were a heterogeneous group sharing race as their only common characteristic and thus he has established a prima facie case of discrimination. We disagree. The four excluded jurors as to whom defendant has not waived his claim of a Batson violation share two significant characteristics apart from their race. They are male and are engaged in nonprofessional occupations or are unemployed. (One was a bus driver, one was a student, one was a contract laborer, one was unemployed.) Consequently, it cannot be said that race is the only characteristic shared amongst the excluded black jurors.

Perhaps even more significantly, unlike Batson this is not a case involving an interracial crime in which specific racial groups would be prone to take sides of prejudice. (See, e.g., Commonwealth v. McKendrick (1986), 356 Pa. Super. 64, 77, 514 A.2d 144, 151.) Here, the defendant is black, the victim was black, and the majority of witnesses are black. Any racial issue inherent in the selection of the jury is therefore minimal, if not nonexistent. Both pre- Batson and post- Batson cases recognize that the racial characteristics of a crime are important factors to be considered by the trial court in determining whether a prima facie case of discrimination has been established. (See, e.g., State v. Butler (Mo. App. 1987), 731 S.W.2d 265, 269 (the susceptibility of the particular case to racial discrimination should be evaluated), followed in State v. Antwine (Mo. 1987), 743 S.W.2d 51, 64, cert. denied (1988), 486 U.S. 1017, 100 L. Ed. 2d 217, 108 S. Ct. 1755; Commonwealth v. McKendrick, 356 Pa. Super. at 77, 514 A.2d at 151 (look to racial character of the crime); Commonwealth v. Soares (1979), 377 Mass. 461, 490-91, 387 N.E.2d 499, 517 (common group membership of the victim and majority of remaining jurors), cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170; Wheeler, 22 Cal. 3d at 281, 583 P.2d at 764, 148 Cal. Rptr. at 905 (common group membership of victim and majority of remaining jurors).) Indeed, as one court has found, there is no advantage to a prosecutor in excluding blacks from a jury where the State's primary witnesses are black. See Matthews, 803 F.2d at 332 (key witnesses for both sides were black, thus discounting any advantage that a discriminating prosecutor might perceive in striking blacks from the jury).

While reviewing the relevant circumstances of this case, we must keep in mind that the initial determination of whether a prima facie case has been established is left to the judgment of the trial Judge, who is in a superior position to determine whether the prosecutor's exercise of peremptory challenges was motivated by group bias. "We have confidence that trial Judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Trial Judges are especially well suited to make this determination because they are familiar with local conditions and prosecutors, and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one. Wheeler, 22 Cal. 3d at 281, 583 P.2d at 764, 148 Cal. Rptr. at 905.

Here, the trial court found that all the relevant circumstances showed that the prosecutors were not excusing prospective jurors because of their race. Based upon our careful review of the record, we cannot say that the trial court's finding is against the manifest weight of the evidence. People v. Conner (1979), 78 Ill. 2d 525, 532.

Defendant responds, however, that the trial court, in making its finding, improperly relied on written observations it made during the course of the original voir dire. Defendant contends that the trial court's reliance on its notes was improper, and cites the cases of Garner v. Louisiana (1961), 368 U.S. 157, 7 L. Ed. 2d 207, 82 S. Ct. 248, People v. Harris (1974), 57 Ill. 2d 228, People v. Wallenburg (1962), 24 Ill. 2d 350, People v. Rivers (1951), 410 Ill. 410, People v. Kent (1982), 111 Ill. App. 3d 733, and People v. Vine (1972), 7 Ill. App. 3d 515, as support for his assertion. These cases are inapposite.

All of those cases involved situations wherein the trial court had relied upon factors or information or personal knowledge external to the proceedings before the court. For example, in Garner, the trial court, without apprising the defendant, took judicial notice of facts external to the proceedings. In Harris, the Judge conducted a personal investigation by inquiring of the defendant's attorney what the defendant had told another attorney who represented him in a previous, unrelated trial. In Wallenburg, the Judge had personal knowledge of certain aspects of the case which was gained outside the trial and upon which he relied upon in making his rulings. In Rivers, the Judge heard evidence and undertook private investigations outside open court. In Kent, the Judge had personal knowledge about the defendant's expert witness gained from prior personal observations unrelated to trial. The Judge also stated on the record that he had a low opinion of the expert's credibility based upon the Judge's previously formed beliefs which were unrelated to the case pending before him. In Vine, the Judge had obtained information relative to the defendant's case from having presided over a codefendant's trial. In this case, the notes taken by the Judge related to his own observations of the occurrences at the voir dire, and the notes pertained only to the internal affairs transpiring before the court. The events recorded by the Judge during voir dire were in open court in the presence of the parties and with their knowledge.

We can discern no basis for concluding that the trial court's reliance on its notes, taken contemporaneously with the events recorded, violated defendant's constitutional rights. This is so particularly where, as here, the defendant does not contest the accuracy of the notes and the observations in the notes are supported by the record.

Having determined that the trial court's finding was not against the manifest weight of the evidence, we need not address defendant's contention that the State should have been required to articulate a legitimate race-neutral basis for excluding black veniremen. Batson requires that a defendant establish a prima facie case of discrimination before the prosecutor is required to articulate his explanation for challenging black jurors. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

The next issue is whether defendant's inculpatory statements concerning the Allen murder and attempted rape should have been suppressed on the ground that they were the product of an illegal arrest.

At the pretrial suppression hearing, John Markham, a violent crimes detective with the Chicago police department, testified that on January 23, 1983, he and his partner were investigating the Allen homicide at the scene of the offense. At approximately 9 a.m. that day, Markham was contacted by his office regarding the armed robbery and assault of another female, Annie Webb.

Markham stated that he returned to the office and reviewed the police report concerning the Webb investigation. Later that morning, he had a telephone conversation with Webb in which she advised him that she had additional information concerning her assailant, and that he should talk with a woman named Diane Smith. She advised him that Smith resided at 3517 South Federal, a CHA high-rise building adjacent to the building where the victim was murdered.

Markham and his partner interviewed Smith in her apartment later that afternoon. Smith informed them that Johnnie Richardson, the brother of her former boyfriend, visited her on January 17, 1983. He demanded sexual relations. When she refused his advances, he threatened her with a knife and told her "he was going to cut her throat." Eventually, after retrieving her own knife from the kitchen she was able to "push him out the door."

Smith further advised Markham that she wanted to file a complaint and she gave Markham a description of her assailant as a five foot, four inch tall black male, 29 or 30 years old, 160 pounds, with a dark complexion, who wore glasses and who had a "lazy eye." Smith also informed the detectives that her assailant lived in an apartment in her building.

Markham further testified that he and his partner proceeded to that apartment and knocked on the door. A woman answered the door, and the detectives identified themselves as police officers and said they were looking for Johnnie Richardson. The woman invited them in, commenting, "you mean, my son Johnnie Lee Evans."

While the officers were talking to Mrs. Evans in the kitchenette, the defendant walked into the room from the back bedroom. He matched the description given by Smith of her assailant.

The detectives identified themselves and told him of the accusations against him. The defendant responded that "it was all a mistake, a misunderstanding." The officers placed the defendant under arrest for the crimes perpetrated against Diane Smith and Annie Webb and brought him to the police station at approximately 12:50 p.m. on January 23, 1983.

Defendant claims his arrest for the Smith aggravated assault was a mere pretext or subterfuge to place him in custody for purposes of questioning him about the Allen murder. In support of this contention, defendant points to the following facts: the six-day lapse between the commission of the Smith offense and his arrest; a violent crimes detective arrested him for the aggravated assault, a misdemeanor; and he was questioned after the arrest about an unrelated felony offense, Allen's murder.

The State responds that defendant was initially arrested for two crimes, the aggravated assault against Smith, a misdemeanor, and the felony offense of robbery and attempted rape of Webb. The State further argues that the arresting officer was a violent crimes detective who would normally investigate these types of matters. The State also contends that there was probable cause to arrest defendant for the Smith offense.

We agree with the State. The trial court found that there was probable cause to arrest defendant on the Smith offense, and that the defendant was not arrested at that time for the Allen murder. A trial court's determination as to whether probable cause to arrest exists will not be disturbed unless it is manifestly erroneous. (People v. Foster (1987), 119 Ill. 2d 69, 83, cert. denied (1988), U.S. , 100 L. Ed. 2d 628, 108 S. Ct. 2044; People v. Clay (1973), 55 Ill. 2d 501, 505.) We are satisfied that the trial court's finding of probable cause to arrest for the misdemeanor is supported in the record. The officer, after talking to the victim, had her complaint fresh in hand, and he immediately proceeded to the place given by the victim where defendant could be found. The officer knocked and announced his office and purpose and a woman invited him into her home where the defendant was arrested.

Any "delay" between the commission of the offense and defendant's arrest is irrelevant. The six-day lapse from the time of the Smith offense and the issuance of her complaint does not make defendant's arrest illegal. The defendant was arrested immediately after Smith filed a complaint with Detective Markham. Consequently there was no "delay" between the time the officers obtained probable cause to arrest and defendant's arrest.

The mere fact that an aggravated assault arrest is made by a violent crimes detective does not transform an otherwise lawful arrest into a pretextual arrest. Indeed, defendant cites no ...


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