February 22, 1989
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE
WILLIAM YOUNG, APPELLANT
SUPREME COURT OF ILLINOIS
538 N.E.2d 453 , 128 Ill. 2d 1 , 131 Ill. Dec. 78
Rehearing Denied May 26, 1989; See separate opinion involving same case at 538 N.E.2d 461 1989.IL.207
WARD, STAMOS, CALVO
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
Justice WARD delivered the opinion of the court:
The defendant, William Young, an inmate at the Stateville Correctional Center, was indicted in the circuit court of Will County for the murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) of Brian Jackson, who also was an inmate. Following a jury trial, the defendant was found guilty and, upon the State's motion, a death penalty hearing was held. The jury found that there existed one or more of the aggravating factors in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b) and that there were no mitigating factors sufficient to preclude a sentence of death. The defendant was accordingly sentenced to death, but the sentence was stayed pending a direct appeal to this court under section 4(b) of article VI of the Constitution of Illinois (Ill. Const. 1970, art. VI, § 4(b)) and Supreme Court Rule 603 (107 Ill. 2d R. 603).
On March 31, 1983, the body of Brian Jackson was discovered in the shower area of the gymnasium at the Stateville Correctional Center. An autopsy showed the cause of death to have been the combined effect of strangulation and 122 stab wounds. The indictment charged the defendant, Robert Amos, Karl Bell, Bruce Dawkins, Robert Tucker and Paul Williams with the murder of Jackson. The defendant and co-defendant Amos were jointly tried and found guilty.
The defendant, who is black, argues that his conviction should be reversed and a new trial ordered on the ground that, inter alia, his right to trial by an impartial jury was violated when the prosecution improperly exercised peremptory challenges to exclude all four of the black jurors examined on voir dire. The record shows that 58 prospective jurors were examined and that the State exercised 15 peremptory challenges to exclude jurors, four of whom were black. There were four blacks on the venire. The defendant objected at the time to the exercise of peremptory challenges to the black members of the venire, but the trial court, on the basis of Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, overruled the objections. In Swain, the Court held that a constitutional question of equal protection in the exercise of peremptory challenges was not presented unless there was a showing of systematic and purposeful exclusion of blacks because of race "in case after case." 380 U.S. at 223, 85 S.Ct. at 837, 13 L.Ed.2d at 774.
The equal protection clause prohibits the exclusion by peremptory challenge of prospective jurors by the prosecution "solely on account of their race." (Batson v. Kentucky (1986), 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83; Strauder v. West Virginia (1880), 100 U.S. 303, 305, 25 L.Ed. 664, 664.) (A footnote in Batson stated: "We express no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel." (476 U.S. at 89 n. 12, 106 S.Ct. at 1718 n. 12, 90 L.Ed.2d at 82 n. 12))
A defendant contending that the prosecution's exercise of peremptory challenges was racially motivated has the burden of showing purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 93, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69, 85; Whitus v. Georgia (1967), 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599, 603-04.) At the time of the defendant's trial, the Supreme Court's holding in Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, governed this evidentiary burden. (See People v. Lyles (1985), 106 Ill. 2d 373, 392-95, 87 Ill. Dec. 934, 478 N.E.2d 291; People v. Williams (1983), 97 Ill. 2d 252, 273-74, 73 Ill. Dec. 360, 454 N.E.2d 220.) Considering the nature of the peremptory challenge, Swain considered there was a presumption that the prosecution properly exercised such challenges. To overcome this presumption, a defendant was required to show a systematic and purposeful pattern of excluding venire members from the jury-selection process on the ground of race in "case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." Swain v. Alabama (1965), 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 774.
Following the trail of the defendant here and during the pendency of this appeal, the Supreme Court handed down its opinion in Batson v. Kentucky (1986, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, which, replacing the test for discriminatory exclusion of Swain, held that a defendant would be able to establish a "prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." (476 U.S. at 96, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87.) To establish a prima facie case:
"he defendant first must show that he is a member of a cognizable racial group [citation] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate.' [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. . . . The prosecutor . . . must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Batson v. Kentucky (1986, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69, 87-89.
In Batson, a black defendant was tried and convicted by an all-white jury following the prosecution's exercise of peremptory challenges of the only four blacks on the venire. In reversing the conviction, the Court stated that "[b]ecause the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings" to determine if the "facts establish, prima facie, purposeful discrimination." 476 U.S. at 100, 106 S.Ct. at 1725, 90 L.Ed.2d at 90.
The Supreme Court has announced that the standard in Batson is to be applied retroactively to all cases which pended on direct review and were not yet final. (Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649.) Thus, this case, which is before this court on direct appeal, is to be considered under Batson. On May 1, 1987, this court, pursuant to its supervisory authority (see 107 Ill. 2d R. 383), remanded for a hearing, in light of Batson, to determine whether racial motivation in the exercise of peremptory challenges was shown. 107 Ill. Dec. 259, 506 N.E.2d 1314.
On remand, the trial court concluded that the defendant established a prima facie case of purposeful discrimination by the State based simply on the exclusion of all four of the black veniremen through peremptory challenges. The trial court stated:
"Gentlemen, my view of the matter is this. I do not believe that the evidence as in the record is sufficient to show that there was a deliberate design, intention on the part of the State's Attorney to exclude blacks. But I am going to make a finding that a prima facie case has been made out on the mere numbers. That is to say that there were four on the venire and four were excluded.
The reason why I am making that finding is I do not want the issue of the reasons for the peremptory challenges to be exercised not to be a part of the record, because I think the Supreme Court is entitled to know, and I do not want the case to be going back and forth between the Supreme Court and the Trial Court on the issue."
The court then called upon the State to state its reasons for excusing the black veniremen: Cory McLaughlin, Deborah Glover, Annie Lee and John Mitchell.
The assistant State's Attorney who represented the State at trial stated that he challenged Cory McLaughlin because McLaughlin stated that he knew the defense attorney, Raymond Boldin, and that on his jury questionnaire McLaughlin answered "yes" to the question of whether he had a "physical or mental impairment that would hamper or interfere with . . . jury duty." He stated that he excused Deborah Glover because she was divorced and lived alone and that her ex-husband had been convicted of armed robbery and had also been arrested for murder, attempted murder and armed violence. The assistant State's Attorney said that he excused Annie Lee because:
"[She] was fifty-nine years old. She lived on York Avenue, which is an area wherein there has been some gang activity in the Joliet area. She lives alone. The State had finished with the case of Collins, Wilson and Harris previous to this occasion, wherein single jurors living at home received phone calls which they interpreted as being of a threatening nature. And her, as well as several other ladies who were living at home without--or single or living or living at home without a husband, were also excused by the State."
Evidence the prosecution introduced at trial showed that the defendant, the victim and the other defendants in the indictment were members of the Vice Lords, a Chicago street gang.
The assistant State's attorney gave his reasons for challenging John Mitchell:
"If the Court will recall its own memory as to Mr. Mitchell's hesitation with response to certain questions and his demeanor in answering the questions, the State felt that jurors which followed were of a stronger nature to decide the issues in a fair manner."
At the Conclusion of the hearing, the trial court made a finding that the State had met its burden of providing neutral, nonracial reasons for excusing the four veniremen and denied the defendant's motion.
The State does not contend that the record does not support the trial court's Conclusion that there was a prima facie showing of purposeful discrimination. We would observe that in determining whether a defendant has established a prima facie showing of purposeful discrimination in the prosecution's exercise of peremptory challenges, a court should consider more than simply the number of jurors excluded. The Supreme Court stated in Batson, "court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."' Batson, 476 U.S. at 93, 106 S.Ct. at 1721, 90 L.Ed.2d at 85. See also State v. Slappy (Fla. 1988), 522 So.2d 18, 21-22; Williams v. State (Tex. App. 1986), 712 S.W.2d 835, 841; People v. Thompson (1981), 79 A.D.2d 87, 111, 435 N.Y.S.2d 739, 755.
The defendant argues that the trial court erred in holding that the prosecution's explanations for excluding the black veniremen were sufficient to discharge its obligation to explain the exercise of peremptory challenges on nonracial grounds. To illustrate this, he contends that the prosecutor's explanation for challenging John Mitchell did not satisfy Batson's requirement that the prosecution offer legitimate, nonracial reasons for the exercise of peremptory challenges. The defendant says that the prosecution should not be allowed to rely upon its objection to a juror's demeanor as a reason for excluding a juror. That reason may be used as a subterfuge for excusing the juror solely on the basis of race and he says that if the prosecution could rely upon such an explanation to rebut the prima facie showing of purposeful discrimination, Batson's principle would be illusory. There is appeal to the contention, but demeanor, or outward manner or bearing, as the dictionary describes it, has anciently been regarded as being of significance. The demeanor of a prospective juror has traditionally been a factor of importance in jury selection.
Voir dire examination serves the purpose of providing counsel an opportunity not only to question prospective jurors but also to observe their appearance and demeanor. Courts have held that a juror's demeanor may constitute a legitimate and racially neutral reason for excusing him or her. See decisions under Batson: People v. Talley (1987), 152 Ill. App. 3d 971, 987, 105 Ill. Dec. 800, 504 N.E.2d 1318 (juror's demeanor and response to questions); People v. Peters (1986), 144 Ill. App. 3d 310, 321, 98 Ill. Dec. 731, 494 N.E.2d 853 (hesitation in responding to questions); Chambers v. State (Tex. App. 1987), 724 S.W.2d 440, 442 (juror's "body english"); State v. Manuel (La. App. 1987), 517 So.2d 374, 376 ("unresponsiveness to proceedings").
A trial Judge has the opportunity to observe a juror's demeanor during voir dire and, experienced in supervising voir dire examination, is in a position to evaluate prosecutive explanations for the exercise of peremptory challenges. The Supreme Court stated in Batson, "Since the trial Judge's findigns in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." (Batson v. Kentucky (1986), 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69, 89 n. 21.) The trial Judge here, who was the Judge who presided over the defendant's trial, found that the prosecution's concern about Mitchell's demeanor was an honest one, and we cannot say that its ruling in this regard was "clearly erroneous." See United States v. Mathews (7th Cir. 1986), 803 F.2d 325, 330; United States v. Forbes (5th Cir. 1987), 816 F.2d 1006, 1010; State v. Alvarado (1987), 226 Neb. 195, 410 N.W.2d 118, 121-22; Baynard v. State (Del. 1986), 518 A.2d 682, 688.
The defendant further contends that the prosecution's explanation for removing Mitchell should be rejected on the ground that it was not "clear and reasonably specific" as required by Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1723 n. 20, 90 L.Ed.2d at 88 n. 20. He says that the explanation was too vague because the prosecutor did not specify which questions Mitchell hesitated in answering or what the prosecutor observed in the other jurors that led him to believe that they were, as he put it, of a "stronger nature."
The defendant's argument does not consider that the voir dire in this case was conducted over three years prior to the hearing on remand. At that time, under Swain, a prosecutor was not required to articulate the reasons for the exercise of his peremptory challenges absent a finding of purposeful discrimination in "case after case." Too, a peremptory challenge traditionally could be based on no more than " " "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another." ' "(Batson, 476 U.S. at 135, 106 S.Ct. at 1743, 90 L.Ed.2d at 113 (Rehnquist, J., Dissenting), quoting Swain, 380 U.S. at 220, 85 S.Ct. at 836, 13 L.Ed.2d at 772.) One could not reasonably expect to require the prosecution to recall with specificity what the defendant says is required. In light of the circumstances, we Judge that the prosecution's explanation satisfied Batson.
The defendant also objects to the prosecution's explanation for excusing another black juror, Annie Lee, because it was not "related to" the outcome of this case as is required by Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 723 n. 20, 90 L.Ed.2d at 88 n. 20. He argues that the other trial that the prosecutor referred to in which jurors were purportedly intimidated by gang members involved a different gang and prison. Therefore, the defendant asserts, there is nothing to substantiate the prosecutor's concern that Lee might be intimidated by gang members.
The prosecutor's concern was clearly supported by the record. At the hearing, the trial Judge stated:
"wo weeks ago I attended a public meeting called by Senator Dunn for the sole purpose of discussing gang activity in the city of Joliet, and what is to be done about it, because it is becoming a serious question.
And I will also tell you that in that previous murder case with Stateville that [the prosecutor] was talking about, there were phone calls that were made to jurors. We do not know who made the phone calls, but we do know that phone calls were made. And any right-minded person would immediately suspect those were gang phone calls."
While the previous trial referred to did not involve the same gang or prison, the prosecution's concern that Lee's deliberations in the murder trial of an incarcerated gang leader, the defendant, might be influenced was sufficiently related to this case to satisfy Batson.
The defendant argues, however, that the prosecution's explanation for excusing Mitchell and Lee should be rejected because the prosecution did not remove white jurors for the same factors that the prosecution found objectionable in them. He says that the prosecutor's notes taken during voir dire, which were submitted into evidence at the hearing on remand, indicate that the prosecutor observed that another juror, John Powell, who is white, hesitated when asked questions during voir dire. The defendant further asserts that although the prosecutor stated that he excused Lee because he lived alone in an area where gang activity had been reported, he did not excuse other jurors who were white and lived alone in reputed gang areas. The defendant argues that because the prosecutor did not exercise peremptory challenges to excuse white jurors on the same basis that he exercised them against black jurors, it must be assumed that the prosecution's explanations were merely a pretext to hide a racial motivation for the strikes. What the defendant argues should not be lightly dismissed. We must keep in mind, however, the nature of the peremptory challenge and the inherent problems involved in a hearing of this character. If a prosecutor excused one person and not another it does not follow that this in itself shows that the prosecutor's explanations were pretextual.
Though a part of the prosecutor's explanations may have been applicable to white jurors who were not challenged, the white jurors may have, in some other respect, exhibited a trait which the prosecutor reasonably could have believed would make him or her desirable as a juror. Too, although the prosecutor did not challenge every white prospective juror who may have lived in an area where gang activity has been reported, he did state that he removed some such jurors. This question and all others involved in the hearing were for the trial Judge, who had also presided at the voir dire. Considering the "great deference" to be given the trail court's findings, we cannot say that the trial court erred in finding that the prosecutor sustained his burden of rebutting the inference of purposeful discrimination.
The prosecutor's exaplanations for removing the other black jurors, Cory McLaughlin and Deborah Glover, were clearly not improper and the defendant does not contest them. Too, we would observe that the record shows that the defendant, the victim and all of the witnesses at trial were black and members of the same cell block. This would appear to void any argument based on racial difference between such persons. (See United States v. Mathews (7th Cir. 1986), 803 F.2d 325, 332; State v. Antwine (Mo. 1987), 743 S.W.2d 51, 67.) We would note, too, that the Supreme Court in Batson stated that the prosecution's explanations for the exercise of peremptory challenges "need not rise to the level justifying the exercise of a challenge for cause." (Batson v. Kentucky (1986), 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69, 88.) The court did not err in denying the defendant's motion.
The defendant also makes contentions that he was deprived of a fair hearing as a result of procedural errors. First, he contends, without citing authority, that the trial court erred in not compelling the prosecutor to state the reasons for the exercise of peremptory challenges under oath and subject to cross-examination.
Had the Supreme Court intended that the prosecutor was to be required to state the reasons for the exercise of preemptory challenges under oath and subject to cross-examination, it would have been a simple thing for the court to have said so. It did not do so, saying only that if and when the defendant made a prima facie showing of purposeful discrimination, the prosecutor was to come forward with a neutral explanation for the challenge to a black juror. There was no suggestons by the court that there was to be what could amount to a trial within a trial. Not only did the Court not state that the prosecutor was to testify as a witness and be subject to cross-examination, but it explicitly declined to formulate what was to be done to implement its decision "[i]n light of the variety of jury selection practices followed in our state and federal trial courts." (Batson v. Kentucky (1986), 476 U.S. 79, 99 n. 24, 106 S.Ct. 1712, 1724 n. 24, 90 L.Ed.2d 69, 90 n. 24.) The Batson court left the nature of the proceeding to ascertain the presence or absence of purposeful discrimination to the determination of State courts. That the Supreme Court did not intend to compel the prosecutor, and maybe defense counsel, to become a witness at what in many instances could turn into a trial within a trial is understandable. The prosecutor and defense counsel, as officers of the court, should be regarded as under a high professional obligation to speak truthfully. Too, a serious question would arise as to whether the attorney could properly be both a witness and an advocate. (See ABA Model Rules of Professional Conduct Rule 3.7 (1980).) The comment to the rule in part states:
"The opposing party has proper objection where the combination of roles [as advocate and witness] may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others."
If the prosecutor were to be a witness, it might be necessary to permit the bringing in of additional counsel to represent the prosecutor and to serve as advocate in the hearing. It seems predictable, too, that there would be instances in which defense counsel would ask that others who were present at the voir dire, such as second counsel and police officers at the counsel table, be called to testify. There may also be other situations in which the testimony of defense counsel would be sought by the prosecution regarding, for example, conversations between counsel and other happenings during the voir dire. We do not consider that the Supreme Court contemplated that there would be a proceeding that the defendant's request here might involve. While there are suggestions in a few decisions that the prosecutor was under oath at a hearing, there is nothing in them to suggest that it was done to comply with a requirement of the Supreme Court that was announced in Batson. It appears that the Supreme Court of North Carolina is the only court of review that has directly addressed the question. That court held that a defendant does not have a right to call the prosecutor to testify as to reasons for the exercise of preemptory challenges. (State v. Jackson (1988), 322 N.C. 251, 368 S.E.2d 838.) The court stated:
"In balancing the arguments for and against such an examination, we believe the disruption to a trial which could occur if an attorney in a case were called as a witness overbears any good which could be obtained by his testimony. We do not believe we should have a trial within a trial. The presiding Judges are capable of passing on the credibility of prosecuting attorneys without the benefit of cross-examination." State v. Jackson (1988), 322 N.C. 251, 258, 368 S.E.2d 838, 842.
The defendant says too that the trial court erred in denying his motion for a continuance. At the hearing, after the prosecutor stated the reason for his strikes, the defendant requested a continuance in order to investigate whether anyone else present at the voir dire had seen Mitchell hestitate; whether any other jurors hesitated; and whether any white jurors, who were not excluded by the prosecution, lived in areas where gang activity had been reported.
Whether to grant a continuance is within the sound discretion of the trial court. (Ill. Rev. Stat. 1983, ch.38, par. 114-4(e).) A defendant challenging the denial of a motion for continuance must show that his rights were prejudiced or he was impeded in the preparation of his defense. (People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.) The defendant here has failed to show that he was prejudiced in either regard. He said he sought the continuance to gather evidence that the prosecution did not challenge white jurors with characteristics on which the prosecutor stated he relied to remove black jurors. As stated, we considered that the trial court did not err in finding that the prosecutor was not racially motivated in exercising peremptory challenges for the reasons discussed. We Judge that the trial court did not abuse discretion in denying a motion to allow the defendant to gather additional evidence on a question the Judge had decided and where he had presided over the proceeding under examination. The defendant makes a related point that after the trial Judge denied the defendant's motion for a continuance, he allowed, as an offer of proof, the defendant, his trial counsel, and co-defendant Robert Amos to testify in essence that, in their opinion, John Mitchell did not hesitate in answering voir dire questions.
While a defendant generally should be permitted to offer evidence to rebut the prosecution's explanations for the exercise of peremptory challenges (see People v. Slappy (Fla. 1988), 522 So.2d 18; Ex parte Branch (Ala. 1987), 526 So.2d 609, 624; State v. Antwine (Mo. 1987), 743 S.W.2d 51, 65), the trial court did not abuse discretion here in not admitting the testimony. The trial Judge himself was present at and presided over the voir dire and had the opportunity to observe the prospective juror's demeanor directly.
For the reasons given, the judgment of the circuit court on the Batson issue is affirmed.
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