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04/20/89 the People of the State of v. Larry Mack

April 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

LARRY MACK, APPELLANT



SUPREME COURT OF ILLINOIS

538 N.E.2d 1107, 128 Ill. 2d 231, 131 Ill. Dec. 551 1989.IL.560

Appeal from the Circuit Court of Cook County, the Hon. John J. Crowley and Hon. James Schreier, Judges, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The defendant, Larry Mack, was convicted in the circuit court of Cook County of murder and armed robbery and was sentenced to death for the murder conviction. This court affirmed the defendant's convictions and death sentence in People v. Mack (1984), 105 Ill. 2d 103. One of the issues presented in that appeal, and resolved against the defendant, who is black, was his argument that the State had exercised its peremptory challenges to purposefully exclude a number of black veniremen, on the basis of their race, from the sentencing jury that sat in this case. In rejecting that argument we relied on our decisions in People v. Williams (1983), 97 Ill. 2d 252, People v. Davis (1983), 95 Ill. 2d 1, and People v. Gaines (1981), 88 Ill. 2d 342, which had interpreted Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, as requiring the proponent of such a claim to present proof of the systematic and purposeful exclusion, in case after case, of black veniremen from juries. The defendant had failed to present evidence of that nature.

After our decision in the defendant's direct appeal, and while the defendant's petition for certiorari was pending in the United States Supreme Court, the Supreme Court held in Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1722, "that a defendant may 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." The Supreme Court later held, in Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, that the rule expressed in Batson was applicable to cases pending on direct review. On February 23, 1987, following its decision in Griffith, the Supreme Court vacated our judgment in the defendant's case and remanded the cause to this court for consideration in light of Griffith. Mack v. Illinois (1987), 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266.

On May 1, 1987, we remanded the cause to the circuit court of Cook County for a hearing on the Batson issue. At the Conclusion of the hearing the Judge ruled against the defendant. Pursuant to our order of May 1, 1987, the Judge filed his findings of fact and Conclusions of law, together with the record of proceedings, with the clerk of this court.

The defendant was charged with murder and armed robbery in connection with his role in a bank robbery that occurred in Chicago on November 23, 1979. In the course of the robbery the defendant shot and killed Joseph Kolar, a security guard. The defendant was convicted of murder and armed robbery in a bench trial in June 1981. Following the defendant's conviction for murder, the State sought a death penalty hearing, and the defendant requested a jury for that purpose. In selecting the sentencing jury, the prosecutors exercised 16 of their 20 peremptory challenges; of the 16 peremptory challenges that were used by the State, 13 were made to black members of the venire, and three were made to white members of the venire. The jury ultimately chosen by the parties consisted of 10 whites, one Asian, and one black. The jury sentenced the defendant to death.

By the time the action was remanded to the circuit court for a hearing on the Batson issue, the Judge who presided at the defendant's trial and sentencing hearing had retired, and therefore the hearing was conducted before a different Judge. At the hearing the court found that the defendant had established a prima facie case of racial discrimination under Batson in the State's use of peremptory challenges in the selection of the sentencing jury. (See Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) The burden then shifted to the State to provide race-neutral explanations for its exclusion of the veniremen. (See Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) Explanations were provided by one of the two prosecutors who had conducted the sentencing hearing. At the close of the proceedings, the Judge ruled that the explanations offered by the State were race neutral and were sufficient under Batson.

The circuit court's findings and Conclusions, together with the record of proceedings, have been submitted for our review. In the present case the defendant challenges the circuit court's determination of the Batson claim and, in addition, raises a number of arguments concerning the procedures followed in the court below.

As we have stated, at the defendant's sentencing hearing the prosecution used a total of 16 peremptory challenges, and 13 of the challenges were exercised against black members of the venire. The defendant contends that the reasons relied on by the State in exercising its peremptory challenges to black veniremen were pretextual. The defendant maintains that many of the black veniremen excused by the State had the same characteristics as white veniremen whom the State did not challenge. The defendant also argues that in a number of instances insufficient information was known about a venireman to warrant a decision by the State to exclude the prospective juror.

Participating in the Batson proceedings was one of the two assistant State's Attorneys who had prosecuted the defendant in this matter. His partner, who had since entered private practice, was unavailable. At the hearing, the prosecutor explained that in selecting the defendant's sentencing jury he and his partner had decided jointly whether to accept persons as jurors; if either prosecutor believed that a venireman should not serve on the jury, the person was excused. In a majority of instances the prosecutors had provided, during voir dire, explanations for their challenges to black veniremen. Although at that time there was no requirement that the State provide such an account, the prosecutors had offered the explanations in response to defense objections that the State was excusing black veniremen on the basis of race.

At the Batson hearing the Judge found that the defendant established a prima facie case of discrimination. The prosecutor then provided explanations for the State's use of its peremptory challenges to the black veniremen. Where a contemporaneous explanation had been offered during voir dire, the prosecutor repeated the explanation, adding details in some cases. After further proceedings, in which defense counsel responded to the State's explanations of its challenges, the Judge found that the reasons relied on by the prosecutors had been race neutral and were sufficient under Batson.

The appropriate standard of review in this case is whether the decision of the circuit Judge is against the manifest weight of the evidence. (People v. McDonald (1988), 125 Ill. 2d 182, 199.) Contrary to the defendant's argument, the manifest-weight standard is applicable here even though the proceedings were not conducted before the same Judge who had presided over the voir dire at issue. In Batson the Supreme Court noted that because "the trial Judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21.) In this case, the circuit Judge, in determining the defendant's Batson claim, was required to consider both the credibility of the prosecutor in explaining the reasons for the State's exercise of its peremptory challenges and the race neutrality of the explanations themselves. As we have noted, the explanations were being offered by one of the State's participants in the jury selection process. The prosecutor's credibility was no less at issue simply because the Judge hearing the matter had not presided over the voir dire. We decline to depart from the manifest-weight standard in this case.

In Batson, the Court "emphasize[d] that the prosecutor's explanation [for exercising a peremptory challenge] need not rise to the level justifying exercise of a challenge for cause." (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The State's explanation for the exclusion of a black venireman cannot be considered race neutral, however, if the State failed to exclude white veniremen having the same or similar characteristic, and there are no further characteristics meaningfully distinguishing the white veniremen who were retained from the black veniremen who were challenged. (See People v. McDonald (1988), 125 Ill. 2d 182, 199; see also United States v. Wilson (8th Cir. 1988), 853 F.2d 606, 610.) But as the State accurately notes, in many instances there will be no single criterion that serves as the basis for the decision whether to excuse a particular venireman. A characteristic deemed to be unfavorable in one prospective juror, and hence grounds for a ...


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