APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
532 N.E.2d 936, 177 Ill. App. 3d 818, 127 Ill. Dec. 107 1988.IL.1894
Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Leroy Broadnax, was tried by a jury in the circuit court of Kane County on two counts of armed robbery. (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a).) He was found guilty on both counts. At sentencing, one conviction was vacated and he was sentenced on the other to 20 years' imprisonment. He brings this direct appeal from that conviction and sentence.
These issues are raised: (1) whether the Kane County jury selection system resulted in the under-representation of blacks and Hispanics thereby depriving him of his right to a jury drawn from a fair cross-section of the community and equal protection; (2) whether identification evidence produced by an improperly suggestive showup should have been suppressed; and (3) whether the court misapplied the rule governing the substantive use of prior inconsistent statements when it denied his tendered instruction on this matter and precluded defense counsel from arguing the evidence substantively to the jury.
This case involved the robbery of a grocery store in Aurora on May 8, 1986, about 4:45 p.m. The robber, wearing sunglasses and a mask over his nose and mouth and carrying a gun and a bag, entered the store and jumped over the customer service area counter, accosting the cashier, Diane Kinney. The robber, later identified as the defendant, demanded to know where the cash drawers were. He left Kinney and went down to the area of the lottery and liquor cash registers where cashier Christine Trotto was working. He jumped over the service counter, Trotto opened the cash register drawers, and he took $300 to $400. He then returned to the area where Kinney was, had her open the cash drawer, and then jumped over the counter and left the store. When the store security guard, William Foster, saw the robber jump over the counter, he (Foster) left the store and waited outside for the robber. The robber came outside without the mask on and drove off in a black-over-green 1973 Cadillac. Foster fired a shot at the right rear tire.
Shortly thereafter, Aurora police officer Pierceall, responding to a radio broadcast concerning the robbery, spotted the Cadillac in a playground parking lot. A black man named Graham was changing the right rear tire, and the defendant walked out from behind a building where several items, including a handgun and, nearby, two pair of sunglasses, were later found. The store security guard identified the defendant as the robber.
The defendant and Graham were then brought to the grocery store parking lot, where the store security guard again identified the defendant as the robber. Diane Kinney identified the defendant as the robber. Christine Trotto and Diane Kinney's two daughters, who were present during the robbery, were unable to identify the defendant. Aurora police officer Long's report recounting this showup at the grocery store indicated Kinney identified Graham rather than the defendant as the robber. Long explained, however, that the defendant's and Graham's names were transposed on his report, and he testified Kinney identified the defendant as the robber.
A customer in the grocery store at the time of the robbery, Dean Rosspank, also identified the defendant in a later lineup, and he testified at trial.
Among the pretrial motions filed by the defendant was a motion to quash the indictment and discharge the jury panel filed pursuant to section 114-3 of the Code of Criminal Procedure of 1963 (Code) and supported by affidavits. (Ill. Rev. Stat. 1985, ch. 38, par. 114-3.) His motion alleged that the method of jury selection in Kane County, which draws jurors only from a list of registered voters, results in underrepresentation of blacks and Hispanics on Kane County grand and petit juries in comparison with their proportionate presence in the total population of the community. That is, in the 1980 census, blacks comprised 4.9% of the Kane County population, whereas observations of the jury pool during the period July 28 to October 27, 1986, showed only 2.8% of the potential jurors were black. Further, Hispanics comprised 9.4% of the Kane County population, but observations of the jury venire during the same time period as above showed only 1.5% of potential jurors were Hispanics.
Brad White, a self-employed translator and interpreter of Spanish, Portuguese and French, was offered as an expert in the field of translation and languages. He testified that there are characteristics of Hispanic surnames which distinguish them from surnames of other ethnic and racial groups. Applying these characteristics, White reviewed a number of Kane County accounting system check registers reflecting payments made to jurors for service during the period July 28 to October 27, 1986. These registers purported to contain 982 names of persons who had served as petit jurors. Of that number, he identified 20 as being Hispanic and two others as possibly Hispanic.
Douglas Naughton, the court administrator for the Sixteenth Judicial Circuit, testified that the jury selection system for Kane County used the voter's registration lists. He said driver's license lists could be used, but were not used because the county lacked the resources to add this additional list. By "resources," he meant the programmers and analysts it would take to modify the system.
On cross-examination, Naughton testified it is not administratively and economically feasible at this time for Kane County to implement the multiple-list system. Duplicate names would have to be removed if the voter's and driver's license lists were to be combined. It would take a minimum of three or four experienced programmers/analysts to accomplish this work along with modification of about 40 other programs related to the voter's registration lists that would have to be changed as well. He testified that out of 22 circuit courts in the State of Illinois, there are none that use both driver's license and voter's registration lists as their jury source list. One county, Stephenson County, with a population of 50,000 to 55,000, has implemented the system which uses only the driver's license list. The population of Kane County is approximately 360,000. On redirect examination, Naughton testified it would not be impossible to make the switch, but that the resources to do so presently do not exist.
Barbara Bieritz, the chief clerk for the Kane County Jury Commission, testified that the response form completed by perspective jurors after they receive a jury summons does not have a place in which to indicate their race. The court later took judicial notice of the juror qualification form and juror summons for the United States District Court for the Northern District of Illinois. The juror qualification form includes a question regarding race and ethnic origin.
Lucille Heninger, the chief bailiff of Kane County, testified that one of her duties was to check on prospective jurors when they reported to the courthouse for jury duty. Each person reporting for jury duty is given a jury questionnaire to complete. The questionnaire does not ask the prospective jurors to indicate their race or ethnic origin. After serving on a jury, jurors are asked to complete an exit questionnaire. There is no place to indicate race or ethnic origin on this questionnaire.
Assistant public defender Donald Lorek testified that he observed prospective jurors on July 28, 1986, and July 30, 1986. On these two occasions, he saw about 80 people. He concluded that there was one black woman, a woman who possibly was black, an Hispanic woman and a woman and a man who possibly were Hispanic. Lorek explained that he was not an expert in racial identifications and that his Conclusions were based on his observations of skin color and facial features.
The prosecutor stipulated to the contents of a law student's affidavit that of 54 prospective jurors viewed by him on August 4, 1986, one was black and none were Hispanic. It was further stipulated that the student, James Snyder, reached his Conclusion "on the basis of his own opinion, based upon his experiences in life, not as an expert."
An investigator for the Kane County public defender's office, Tracie Turner, testified that she was not an expert in identifying ethnic backgrounds. She had conducted "a couple hundred" interviews for the public defender's office and had been asked before to identify people on the basis of their racial or ethnic background. It was stipulated that her testimony as to her observations would be consistent with her affidavit. Her affidavit, which covered juror observations three times in August, four times in September, and four times in October of 1986, showed 690 jurors were observed of whom 22 were black, 11 were Hispanic, and 2 were oriental.
The prosecutor stipulated that on any given date, no more than one or two potential jurors missed the jury movie at which the public defender's office conducted its observations.
Affidavits from three trial attorneys were also admitted. Van Richards' affidavit stated he was admitted to practice in 1960 and that in the more than 80 jury trials he had conducted in Kane County, he estimated that blacks constituted 1% and Hispanics .5% of the prospective jurors. Fred Morelli's affidavit stated that he was admitted to practice in 1966 and he had tried in excess of 100 jury trials in Kane County. He estimated that blacks comprised 1% and Hispanics 3% of the prospective jurors. Frank Giampoli's affidavit stated that he was admitted to practice ...