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04/20/89 the People of the State of v. Jerry Mahaffey

April 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JERRY MAHAFFEY, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

REGINALD MAHAFFEY, APPELLANT



Before trial the defendants had moved for a severance on the grounds that the State's intended use of the confessions would, under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, deny them their right to confront witnesses. The trial Judge denied the motion, relying on the plurality opinion in Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, which held that Bruton error does not occur if a defendant's own confession, introduced into evidence, "interlocks" with, or is corroborated by, the confession of the non-testifying co-defendant and the jury receives instructions correctly limiting the use of the evidence.

SUPREME COURT OF ILLINOIS

539 N.E.2d 1172, 128 Ill. 2d 388, 132 Ill. Dec. 366 1989.IL.555

Appeal from the Circuit Court of Cook County, the Hon. Thomas A. Hett, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court. JUSTICE MILLER, Concurring in part and Dissenting in part. JUSTICE RYAN joins in this partial concurrence and partial Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendants, Jerry Mahaffey (Jerry) and Reginald Mahaffey (Reginald), were indicted by a Cook County grand jury for the murders of Dean and Jo Ellen Pueschel, and the attempted murder of Richard Pueschel. Defendants were charged as follows in connection with the deaths of Dean and Jo Ellen Pueschel: intentional murder, knowing murder, and felony murder based on residential burglary, home invasion and armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2) (respectively)); residential burglary based on theft and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 19-3); home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2)); armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)); armed violence premised on knowing murder (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2); and theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)). In connection with the death of Jo Ellen Pueschel, defendants were also charged with felony murder based on rape and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)); rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)); deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11-3(a)); and armed violence premised on rape and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). In connection with the assault on Richard Pueschel, defendants were charged as follows: attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8-4); aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)); aggravated battery premised on use of a deadly weapon (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(1)); aggravated battery of a child (Ill. Rev. Stat. 1981, ch. 38, par. 12-4.3(a)); home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2)); armed violence based on attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2); and armed violence premised on aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). All of the armed violence counts were dismissed on the State's motion. The defendants were tried jointly before the same jury on each of the remaining counts. At the Conclusion of the State's case in chief, the trial court granted Jerry's motion for a directed verdict on the deviate sexual assault charge. At the Conclusion of all of the evidence, the jury found Reginald not guilty of deviate sexual assault, but found both defendants guilty of all remaining charges. The State requested a hearing to consider whether the death penalty should be imposed. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d).) The jury which convicted the defendants also sat at the sentencing phase. The jury found defendants eligible for the death penalty, and found there were no mitigating factors sufficient to preclude imposition of the death penalty. The defendants' death sentences were stayed (107 Ill. 2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). This court consolidated the defendants' appeals after oral arguments in these cases.

On April 30, 1986, while defendants' appeals were pending in this court, the United States Supreme Court filed 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, this court issued supervisory orders in these cases on October 26, 1987. In those orders, we retained jurisdiction of these causes 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 November 30, 1987, and found that defendants had failed to establish a prima facie case of discrimination.

On return of the cases to this court, defendants raise numerous issues alleging errors at all stages of the proceedings. The issues we must address as to Jerry are: (1) whether the trial court erred in finding that Jerry failed to establish a prima facie case of discrimination under Batson ; (2) whether the trial court erred in excusing a venireman for cause without further inquiry into her sentiments regarding the death penalty; (3) whether the trial court erred in admitting Richard Pueschel's in-court identification of Jerry as one of the perpetrators of the crimes; (4) whether a comment made by Jo Ellen Pueschel's mother from the gallery during the redirect examination of Reginald denied Jerry a fair trial and a fair sentencing hearing; (5) whether some of the prosecutor's remarks during trial and closing argument had the effect of shifting the burden of proof to Jerry and undermined the presumption of his innocence; (6) whether the State failed to prove the corpus delicti of the rape; (7) whether the prosecutor's remarks during the sentencing phase sought to minimize the jury's responsibility for determining the appropriateness of death, in violation of Caldwell v. Mississippi (1985), 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633; (8) whether the trial court erred in refusing to instruct the jury that if it failed to sentence Jerry to death, the court would sentence him to a term of natural life; (9) whether the trial court erred in holding a joint death penalty hearing; and (10) whether Jerry's death sentence is excessive given his "light criminal background." Jerry also asks that we reconsider our prior cases upholding the constitutionality of the Illinois death penalty statute.

Reginald raises the same issues as does Jerry. Reginald raises four additional issues: (1) whether the trial court erred in failing to grant a severance because the admission of Jerry's confession implicating Reginald in the crimes denied him his right to confront witnesses; (2) whether the trial court erred in finding Reginald fit to proceed at trial without requiring a full examination of him; (3) whether the trial court erred in admitting a medical record as past recollection recorded during his pretrial suppression hearing; and (4) whether the trial court erred in denying Reginald's motion to quash his arrest and suppress evidence. Because we hold that the trial court erred in failing to grant a severance, and conclude that Reginald's case must be remanded for a new trial, we need not address the other issues raised in his brief. We therefore limit our recitation of the testimony introduced at the guilt and sentencing phases to only those facts which are relevant to the issues raised by Jerry.

The record reveals that on the morning of August 29, 1983, Joseph Heinrich found the dead bodies of his daughter, Jo Ellen Pueschel, and his son-in-law, Dean Pueschel, in the Pueschel home. Mr. Heinrich found his grandson, Richard Pueschel, severely beaten and wandering near the alley by the family home. Several items were missing from the Pueschel home, including: a .357 Magnum revolver; a Zenith video recorder and several videotapes; an Atari video game console and seven game cartridges; several items of jewelry belonging to all three victims; and the Pueschels' 1982 red Chevrolet Camaro.

Eleven-year-old Richard Pueschel testified that during the late evening of August 28, or the early morning of August 29, 1983, he awoke to find himself in a headlock. He heard two separate voices tell him to "shut up and be cool." Richard further testified that he either fell back asleep or was knocked out, and later woke up and walked into the kitchen "in a daze." Once in the kitchen, he was told to lie on the floor next to his mother. Richard testified that while he was lying on the floor, he could see his mother lying on the floor next to him out of the corner of his eye. He stated that he could see she was being struck. He could not remember what happened to him at that time. At the Conclusion of his direct testimony, Richard identified both defendants as being the two men who were in his home that night. On cross-examination, Richard admitted that he had been unable to identify the defendants in a line-up conducted while he was being hospitalized for his wounds, and denied having seen the defendants' pictures in the newspaper. Richard further testified that he had described the assailants to Detective Ryan of the Chicago police department. He described one assailant as being 5 feet 10 inches to 5 feet 11 inches in height, medium build, weighing between 160 to 180 pounds, wearing a medium afro, possibly having a scar on his left cheek. He described the other assailant as being 5 feet 9 inches or 5 feet 10 inches in height, "skinny" build, weighing between 150 to 170 pounds, wearing his hair in a short afro and having a short mustache. He denied giving any other description to the police.

Chicago police Detective Anthony Graffeo testified that his investigation of these crimes began at the Pueschel home on the morning of August 29, 1983. Detective Graffeo acknowledged that his report concerning the incident contained a description of the assailants which differed from the description Richard gave to Detective Ryan. Detective Graffeo's report indicated that one assailant was a 25- to 30-year-old black male, 6 feet 2 inches in height, 210 pounds, with a "scraggly" beard and wearing a white shirt. The second assailant was described in the report as being a light-complected black or Latino male, approximately 25 to 30 years of age, 5 feet 4 inches to 5 feet 6 inches in height, weighing 125 pounds and wearing dark clothing. Detective Graffeo stated that his report was based upon a canvass of residents of the apartment building in which the Pueschels resided.

Sergeant Frank Piercezynski of the Chicago police department testified that while on duty on August 30, 1983, he discovered a 1982 red Chevrolet Camaro in a parking lot at 2245 West Lake Street. The automobile was later identified as belonging to the Pueschels.

Sergeant John Byrne of the Chicago police department testified that at approximately 2 a.m. on September 2, 1983, he met with one of defendants' brothers, Cedric Mahaffey. Based on the information received from Cedric, the Chicago police arrested defendants and seized from their residences certain property which belonged to the Pueschels. The property seized from Jerry's residence included the Zenith video recorder and the Atari video game console and game cartridges. The property recovered from Reginald's apartment included the .357 Magnum revolver and 24 pieces of jewelry. Sergeant Byrne also testified that Reginald removed a man's ring from his hand and a watch from his back pocket after he was arrested. The ring and the watch were later identified at trial as also belonging to Dean Pueschel.

Sergeant Byrne admitted on cross-examination that despite Cedric Mahaffey's knowledge of facts concerning the crimes which were unknown to the general public, he was never arrested nor were his fingerprints compared to those found in the Pueschel home. Sergeant Byrne also admitted that Cedric Mahaffey is a light-complected black male.

Upon further cross-examination, Reginald's counsel inquired into certain statements Cedric Mahaffey made to Sergeant Byrne. Based upon this line of questioning, the State was allowed, over defense counsel's objection, to inquire on redirect examination into the substance of the conversation Sergeant Byrne had with Cedric Mahaffey.

After the trial court orally instructed the jury to consider the testimony in determining the guilt or innocence of Reginald, Sergeant Byrne testified in substance as follows. He and Detective Charles Grunhard met with Cedric Mahaffey, who told them that "he knew who committed a double murder on the north side of Chicago a couple of days earlier." When asked who had committed the murders, Cedric told the officers that he did not want to tell them who they were until he could be sure of their involvement. Cedric then asked the officers whether any guns were taken. After Sergeant Byrne told him that there were guns taken in the incident, Cedric went on to correctly describe to Sergeant Byrne the guns that were taken in the incident.

Cedric then told Sergeant Byrne that he would not tell him the names of the men who committed the murders but that he would tell him where they lived. Cedric then retrieved a video cassette tape of the film "Papillon" from the trunk of his car, and told Sergeant Byrne that the tape had been taken from the victims' home. Cedric then described how he obtained the tape.

On Thursday, September 1, 1983, at 7 o'clock in the evening, Cedric received a telephone call from a "friend" who asked him to go to the "west side to help him move some stuff." An hour later, he drove with his friend and another person to an apartment on the west side, where he helped them load video equipment and video cassettes into the car. Cedric also saw a .357 Magnum and a 12-gauge shotgun in the apartment.

Cedric and the friend then drove to a location on the south side and carried the items into a house. While carrying the items into the house, the friend told Cedric that "he and the other friend got these items committing a burglary, and that they had to kill a couple of people." Upon hearing this, Cedric removed the videotape from the box he was carrying in order to show the police. When Cedric asked his friend if he was kidding, the friend said, "No[w]e killed a couple of people on the north side and a little boy lived." When Sergeant Byrne asked who the people were who had committed the murder, Cedric told him their names were Reginald and Jerry, and that they were his brothers.

Cedric then began to relate more of the conversation he had had with one of his brothers regarding the crimes. From the conversation, Cedric learned that Reginald and Jerry had gone to the north side to commit a burglary, but that the van they were driving "broke down." They left the van and crawled through an open window and found a boy asleep. They beat the boy and then went into another room and found a man and a woman. They beat the man and the woman and then had sex with the woman. They removed several items from the house, loading them into the car "that was in the driveway."

Cedric stated that the Tuesday following the crimes, Jerry went to Reginald's house where they divided up the property. Jerry took the rifle, the Atari game and the video recorder, and took them to his brother Terry's apartment. The day before he was arrested, Jerry retrieved the property from Terry's apartment and brought it to his house.

Cedric told Sergeant Byrne that the .357 Magnum and the shotgun would be found where Reginald was staying. Cedric also told Sergeant Byrne that the video equipment and cassettes would be found in Jerry's apartment and the carbine would be found in his brother Terry's apartment.

Assistant State's Attorney Irv Miller testified that both defendants gave statements, each of them admitting complicity in the crimes and implicating the other as well. Over defense counsel's objections, the statements were read to the jury without redacting them to exclude references to the nondeclaring defendant. The jury was instructed that each defendant's statement should only be considered as evidence against the person making the statement.

The substance of Jerry's statement is as follows. On August 29, 1983, Jerry and his brother, Reginald, had discussed committing a burglary on the "north side." Both he and Reginald drove to the corner of Howard and Western Streets, where they were going to burglarize a clothing store. However, Jerry saw a "paddy wagon" in an alley, so Reginald drove the van around the block and parked in a hospital parking lot. After they decided not to burglarize the store, they attempted to start the van but were unable to do so because the battery was "dead." Jerry and Reginald left the van and started walking toward an alley. Seeing an open window, Reginald removed the screen and Jerry entered the apartment with Reginald following behind him.

The room they first entered was the bathroom. They proceeded out of the bathroom and into the "grown-ups room" and then the "boy's room." Both men then entered the kitchen where Reginald picked up a knife. Jerry wiped everything Reginald touched "for not finding fingerprints." They both proceeded into the "little boy's room." Jerry approached the child and tried to strangle him with a towel. They then put a pillow over his head and Reginald stabbed him four to five times. As the boy continued to struggle, Jerry hit the boy over the head with a baseball bat he had found in the boy's room.

Reginald and Jerry each took a baseball bat from the boy's room, and entered another room where they found two people lying in bed. Reginald stood on the left side of the bed next to the woman. Jerry stood on the right side of the bed next to the man. They both proceeded to hit the man on the head with the baseball bats. Reginald took the woman into another room where he forced her to perform fellatio and have vaginal intercourse with him. Jerry went into the room where Reginald and the woman were, but returned to the room in which the man lay and "saw the man pulling a pistol out." Jerry hit the man over the head with the baseball bat and returned to the living room. Reginald asked the woman where the other guns were, to which the woman replied, "there [were] more above the dresser on the wall." Jerry and Reginald went back into the bedroom in which the man lay to retrieve the weapons. Jerry was unable to remove a "pump and [a] thirty-thirty" because they were locked in a rack on the wall. However, Reginald was successful in removing a shotgun. During this time, the man began to move, and Reginald stabbed him four to five times in the chest and side.

Reginald asked the woman for the keys to her car. The woman accompanied Reginald out to the car so she could turn off the car alarm. He and the woman went back into the house, and he began to load several items from the house into the car.

Jerry then identified the items seized from his residence as well as his brother's residence as being the items taken from the home they had burglarized. These items included a shotgun, a rifle, three boxes of ammunition, a box of "tapes," an "arcade game" and several items of jewelry.

After loading the items into the car, Jerry went back into the house and told the woman to lie down. The boy then said "Ma-ma, Ma-ma," after which she and the boy lay down. Reginald struck her on the head several times with a pistol, causing her death.

Reginald and Jerry drove the car to Reginald's house, where they left the property taken from the home. They then abandoned the car at the Henry Horner projects.

While Reginald's statement corroborated Jerry's statement in many respects, there were differences. For example, Jerry stated that the plan to burglarize the clothing store was abandoned because they saw a police wagon while Reginald claimed it was abandoned because of the traffic. Jerry stated that he followed behind Reginald and wiped his fingerprints from every item he touched, a fact not mentioned in Reginald's statement. Reginald stated that he had vaginal intercourse with the woman, and that he saw the woman performing fellatio on Jerry. Jerry also stated that Reginald had vaginal intercourse with the woman. However, he did not state that the woman performed fellatio on him. Rather, he stated that the woman performed fellatio on Reginald. Reginald claimed that Jerry stabbed the boy while Jerry said that Reginald committed the stabbing. Jerry also claimed that Reginald stabbed the man four to five times while Reginald failed to mention the stabbing in his statement. Jerry stated that as the woman lay on the kitchen floor Reginald hit her over the head with the revolver. In contrast, Reginald stated that as he left the house, he could hear "solid hits" which "told him [that Jerry] was finishing the lady and her son off with the bats."

Expert testimony regarding the physical evidence discovered at the scene indicated that several of the fingerprints found matched those of Dean and Jo Ellen Pueschel. None of the prints found at the scene matched either of the defendants' finger or palm prints. However, testimony further indicated that the finger or palm prints of Richard Pueschel and Cedric Mahaffey were never submitted for comparison. The testimony also indicated that the vaginal swab taken from Jo Ellen Pueschel tested positive for the presence of sperm, and that her vagina was "widely patent," but did not show signs of abrasions or trauma. The expert who examined the vaginal swab was unable to determine when intercourse had occurred. Moreover, the expert could not determine the assailant's blood type because the swab did not reveal the presence of "ABO blood substance."

Defendant Jerry Mahaffey's theory at trial was that the police had beaten him and extracted a false confession from him. He contended that he had rehearsed his statement with the police and the assistant State's Attorney prior to the arrival of the court reporter. Jerry also asserted that the lack of identification and physical evidence linking him to the crime created a reasonable doubt as to his guilt. Defendant Reginald Mahaffey's defense at trial echoed Jerry's. In addition, Reginald asserted that Cedric Mahaffey's intimate knowledge of the crimes demonstrated that he was the person who had committed them. Reginald testified in his own behalf, denying that he had committed the crimes for which he was charged. He at first denied that the Pueschels' property had been recovered from his residence. However, Reginald stated later that he purchased the TV, jewelry and guns from a man who visited the apartment shortly before he was arrested.

The jury found both of the defendants guilty of murder, attempted murder, home invasion, rape, armed robbery, residential burglary, aggravated battery and theft. Reginald was found not guilty of deviate sexual assault. The State then moved for a death penalty hearing. As previously noted, our recitation of the evidence introduced at the sentencing hearing will be limited to the evidence concerning the sentencing of Jerry only.

The State presented evidence concerning a prison escape in which Jerry participated while he was incarcerated awaiting trial. Vernon Williams, a Cook County correctional officer, testified that on March 23, 1984, at approximately 9 p.m., Reginald, armed with a gun, entered the prison security office with another inmate who was dressed in an officer's uniform. Pointing the gun at Officer Williams, Reginald told the officer to lie on the floor. The witness testified that Jerry Mahaffey entered the office along with two other inmates, and that all of the prison employees present were told to lie on the floor. The witness further testified that as the inmates proceeded to remove some of the officer's uniform, Jerry took $650 from him. The witness indicated that Jerry was armed with a gun at that time. The record shows that Jerry successfully escaped but was recaptured two days later.

The State also introduced into evidence certified copies of Jerry's prior convictions. The record shows that defendant was convicted of robbery in 1974, 1976 and 1981. His record also contains convictions on two counts of theft and one count of retail theft, all in 1980.

In mitigation, Jerry's mother, Myrtis Mahaffey, testified that she had raised the family alone in the Chicago housing projects, where violence and gang fights were common. She described Jerry as a "fun-loving" person, and said that she loved him and would miss him when asked how his death would affect her.

Jerry testified in his own behalf stating that he had a wife and two children whom he had tried to support by working in a bowling alley as a janitor. He also stated that he wanted to live. Over objection of his counsel, the State questioned him regarding his involvement in the crimes at issue. He denied being present in the Pueschel home. When asked whether he would attempt to escape from prison again, Jerry replied, "I don't know."

Jerry's wife, Carol Mahaffey, testified that Jerry had a close relationship with his daughters. She also stated that she wanted Jerry to live to help support the family and she also wanted her newborn child to know her father.

The jury found Jerry to be over 18 years of age (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) and also found that he had been convicted of two or more murders (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3)). Finally, the jury found that Jerry had been convicted of murdering someone during the commission of the felonies of armed robbery, rape, home invasion or residential burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c).) The jury also found that there were no mitigating factors sufficient to preclude imposition of the death penalty.

The facts which are relevant to our resolution of Jerry's Batson claim are as follows. The record reveals that Jerry is black and the victims are white. During voir dire, the trial court noted the race of each venireman on their respective juror cards. Certified copies of the relevant juror cards have been included with the record on appeal. The State was given a total of 24 peremptory challenges; eight were exercised against white jurors and seven against black jurors. Jerry's counsel made a motion to dismiss the venire each time the State struck a black venireman from the jury, alleging that the State was improperly excluding blacks from the jury. At the Conclusion of voir dire, he made another motion to dismiss the venire, alleging that the State had exercised its peremptory challenges to remove all seven black veniremen who remained after challenges for cause. He stated that one black juror had been accepted by the State as an alternate only after it had exhausted its peremptory challenges.

The trial court reviewed the relevant case law. Without citing to a particular case, the trial court stated that it disagreed with a recent decision of this court which reaffirmed the pre- Batson rule that the State is not required to come forward with reasons for the exercise of its peremptory challenges, even where it is responsible for excusing a majority of the black veniremen from the venire. However, the court recognized that it could not require the State to come forward with reasons for the questioned challenges, although it invited the State to do so. The State declined the invitation. The trial court denied Jerry's motion to dismiss the venire.

At the Batson hearing held pursuant to our supervisory order, Jerry's appellate counsel made several arguments in support of his claim that he had established a prima facie case of discrimination under Batson. Counsel argued that the State intended to dismiss all of the black veniremen without seriously considering them for jury service. He asserted that this intent was demonstrated by the fact that the State made no special inquiry of the prospective black jurors during voir dire. He also emphasized that the State had removed all of the black veniremen who remained after challenges for cause, and that the State's action caused the trial court to ask the State to explain the reasons for its challenges. He concluded that these facts established a prima facie case of discrimination.

The State made several arguments in support of its position that defendant had failed to establish a prima facie case. First, the State noted that it had accepted a black woman as an alternate juror. The State further argued that it had exercised more challenges against white veniremen than black veniremen. Finally, the State gave its criteria for challenging the seven black veniremen, asserting that the criteria were applied to all veniremen, without regard to race.

The trial Judge began his analysis by acknowledging that defendant is black, and that the Judge may rely on the fact that "peremptory challenges constitute a jury selection practice that permits discrimination." The Judge then commented on his observations of the two assistant State's Attorneys who tried the case, Mr. Malatesta and Mr. Tsukuno. While admitting that he had not had much experience with Malatesta, he stated that as to Mr. Tsukuno:

"I have had a lot of experience with Mr. Tsukuno, who represented the State in this courtroom for I believe better than a year, maybe even more. And he was what is known as the first chair in this courtroom, which meant that he was responsible for all of the cases and directed the assistants who were in this courtroom.

I have never found Mr. Tsukuno to be one who practiced any type of discrimination at all.

So in that respect I don't believe that this presumption that challenges can permit discrimination if they would wish to do so can fairly be a presumption that I can put up and compare against Mr. Tsukuno. He is not that type of person."

The court then went into a detailed analysis of the jurors whom the State struck from the jury, noting that the characteristics of the eight white jurors who were stricken from the jury were the same as the characteristics of the black jurors who were stricken from the jury. The court added that several of the white veniremen shared more than one characteristic with their fellow black veniremen. The court then compared the characteristics of the white and black veniremen the State struck from the jury. For example, the trial court noted that the State struck one white and one black teacher; one white tradesman and one black tradesman; one white writer and one black writer; one white draftsman and one black engineer; two white veniremen and one black venireman who had been accused of a crime; and five white veniremen and two black veniremen who had been victims of crimes. After considering all of the relevant circumstances, the trial court found that defendant had failed to establish a prima facie case of discrimination.

The first issue we address is whether the trial court erred in failing to grant Reginald's motion for a severance. Reginald argues that the admission of Jerry's confession implicating him in the crimes denied him his right to confront witnesses. Jerry does not join in this argument because Reginald testified at trial and was subject to cross-examination concerning his statement implicating Jerry in the crimes.

Citing Lee v. Illinois (1986), 476 U.S. 530, 539, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2061, the State argues that the presumptive unreliability of Jerry's confession was rebutted by sufficient indicia of reliability and trustworthiness to render it independently admissible against Reginald. The defendant in Lee was charged along with a codefendant, Thomas, with the commission of a double murder. (Lee, 476 U.S. at 531, 90 L. Ed. 2d at 520, 106 S. Ct. at 2057.) Neither defendant testified; however, the trial court expressly relied on Thomas' confession in determining Lee's guilt. On appeal, the Supreme Court was asked to decide whether the use of Thomas' confession at their joint trial violated Lee's rights under the sixth amendment confrontation clause as applied to the States through the fourteenth amendment. The court held ...


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