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12/30/88 the People of the State of v. . Williams

December 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

XAVIER D. WILLIAMS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

532 N.E.2d 1044, 177 Ill. App. 3d 787, 127 Ill. Dec. 215 1988.IL.1954

Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant Xavier Williams was indicted, tried before a jury, and convicted of the offense of felony murder. He was sentenced to 35 years in prison. On direct appeal this court affirmed the conviction and sentence. (People v. Williams (1985), 136 Ill. App. 3d 126, 483 N.E.2d 306.) Subsequently the United States Supreme Court granted certiorari, vacated the conviction, and remanded to this court for further consideration of the issue of racial discrimination in the selection of the jury. Defendant, who is black, established that the prosecutor used peremptory challenges to exclude the only three blacks who were considered for the jury. Under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the use of peremptory challenges to exclude members of the defendant's race from the jury can establish a prima facie case of purposeful discrimination, and once a prima facie case is established, the burden is on the State to come forward with racially neutral reasons for the use of challenges. 476 U.S. at 100, 90 L. Ed. 2d at 90, 106 S. Ct. at 1725.

Upon remand from the Supreme Court, we sent this cause back to the trial court to determine whether defendant had established a prima facie case of discrimination pursuant to Batson v. Kentucky. (People v. Williams (1987), 156 Ill. App. 3d 560, 509 N.E.2d 782.) The trial court conducted a hearing at which it was shown once again that the only black jurors (three in all) who were examined were excused by the State's peremptory challenges, that in this case the black defendant had called a particular cab company so that the driver he intended to rob and kill would be white, and that the circumstances of the case gave rise to an inference that the peremptory challenges were used to exclude jurors on the basis of race. The trial court ruled that defendant had established a prima facie case of purposeful discrimination.

At the hearing the three challenged jurors were described as follows: Mrs. Berry was married, had one child, lived in University Park, and worked for the Private Industry Council, where she helped the unemployed obtain jobs. Mr. Britton was separated, had one child, lived in Bolingbrook, and worked for the board of education. Mr. Churchill was married, had three children, lived in Joliet, and worked at Amoco Chemical.

The State's Attorney stated that Mr. Britton had been excused because he had a civil judgment against him and because his brother had been killed during a burglary several years earlier. Defendant does not argue on appeal that this reason was pretextual. The reason given for excusing Mr. Churchill was because he lived within one or two blocks of the place where the offense took place, which was in a "gang area." Although the offense was not gang related, defendant and a codefendant were in fact members of street gangs in that area. The prosecutor also stated that he was concerned about Mr. Churchill's reaction to a transsexual witness who lived in the same area. As to Mrs. Berry, she worked in the vicinity occupied by defendant's gang and some gang members seek employment through the Private Industry Council. The prosecutor was also concerned with what Mrs. Berry said on her questionnaire -- that she would have difficulty sitting on the jury because of her work, and he thought that she did not want to serve. Also, she indicated on her questionnaire that she had served on a jury in Cook County at one time, but during voir dire she said she had never served on a jury.

After the State concluded its explanation, defense counsel attempted to call Mrs. Berry as a witness. However, the trial court ruled that defendant could not present evidence but that the court would listen to defendant's arguments. Defense counsel argued that the prospective jurors' proximity to areas where gangs operated was not related to this case and was pretextual. Counsel further stated that Mrs. Berry would testify that she had wanted to be a juror and that she knew of no reasons why she should not have been accepted.

The trial court ruled that the State had provided sufficient neutral reasons for the peremptory challenges. The judgment of conviction and sentence were reinstated, and defendant has appealed from that ruling.

On appeal, two issues are raised: (1) Did the State establish neutral reasons for its peremptory challenges? (2) Was defendant entitled to present rebuttal evidence at the Batson hearing?

Looking first at the procedural issue, in Batson the Supreme Court held that the defendant must establish a prima facie case of purposeful discrimination in the selection of the jury and that discrimination may be established solely on evidence concerning the prosecutor's exercise of peremptory challenges. Then the prosecutor must articulate a neutral explanation related to this particular case. The majority in Batson expressly declined to formulate particular procedures to be followed, leaving that to the discretion of the trial court in each case.

Since the Batson decision, questions concerning particular procedures have been considered in a number of Federal cases. In the Ninth Circuit Court of Appeals, two cases have been decided in which the defendant raised the issue of racial discrimination in the use of peremptory challenges at the time the jury was selected and before the trial began. (United States v. Thompson (9th Cir. 1987), 827 F.2d 1254; United States v. Alcantar (9th Cir. 1987), 832 F.2d 1175.) In both cases, the trial court heard the prosecutor's reasons during an ex parte conference at which defense ...


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