Before discussing the relevant circumstances cited by the State, we note that we find little merit to defendant's claim that the excluded blacks were heterogeneous and could only be distinguished from the whites who served on the jury by the fact that they were black. Our review of the record indicates that seven of the eight white jurors were married and the eighth was a widow. Of the excluded blacks, one was divorced, one was an unmarried single mother, and one was separated from her husband. Thus, three of the four blacks could be distinguished from the white jurors based upon their marital status.
SUPREME COURT OF ILLINOIS
547 N.E.2d 124, 132 Ill. 2d 128, 138 Ill. Dec. 155 1989.IL.1677
Appeal from the Circuit Court of Will County, the Hon. Robert R. Buchar, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
Defendant, Tafford Holman, was convicted in the circuit court of Will County of felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), intentional murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) and home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(1)). Defendant was sentenced to death for the felony murder conviction, to 60 years' imprisonment for the intentional murder conviction, and to 40 years' imprisonment for the armed violence and home invasion convictions. This court affirmed certain of his convictions but vacated defendant's sentences and remanded to the circuit court of Will County for a new sentencing hearing. (People v. Holman (1984), 103 Ill. 2d 133.) The specific facts concerning defendant's convictions and previous sentences are set forth in detail in that opinion and will not be repeated except where necessary to the issues discussed herein.
At the resentencing hearing, a jury found defendant eligible for the death penalty based on the presence of the statutory aggravating factor that the murder had been committed during the course of an armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)). The jury also found no mitigating circumstances sufficient to preclude imposition of the death penalty (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(c)). On May 8, 1986, the trial court Judge sentenced defendant to die by lethal injection for the felony murder conviction and to concurrent terms of 30 years each for the armed violence and home invasion convictions. The death sentence was stayed (107 Ill. 2d R. 609) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). In light of the United States Supreme Court's decisions in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, this court, on October 26, 1987, remanded the case to the circuit court of Will County to conduct a hearing on defendant's claim that the State unconstitutionally discriminated against blacks in its exercise of peremptory challenges. This court subsequently entered an order clarifying that the October 26, 1987, order applied only to the State's use of peremptory challenges at the resentencing hearing, not to the State's use of peremptory challenges at defendant's trial.
Defendant argues on appeal that his convictions in this case should be reversed because the State improperly excluded blacks from serving on the jury at his original trial. Defendant also argues that he was denied a fair sentencing hearing on remand because: (1) the jury at the resentencing hearing was unfairly selected because biased venirepersons were not properly excused for cause; (2) a comment by the sentencing court Judge at the start of the resentencing hearing unfairly swayed the jury in favor of the State; (3) the introduction and use of defendant's prior uncounseled juvenile delinquency adjudication constituted error; (4) defendant was unfairly denied the right to present evidence in mitigation; (5) certain testimony was erroneously admitted; and (6) defendant was denied effective assistance of counsel at the resentencing hearing. Defendant also argues: (1) that the death sentence is an excessive penalty in this case and (2) that the Illinois death penalty statute is unconstitutional. Finally, defendant claims that the sentencing court Judge erred at the Batson hearing conducted on remand in concluding that defendant failed to establish a prima facie case of discrimination by the State in its use of peremptory challenges. Defendant does not challenge the sentences imposed on him by the sentencing court for his armed violence and home invasion convictions.
Defendant's first contention is that the State unconstitutionally exercised its peremptory challenges to exclude blacks from the jury at his original trial. As a result, defendant argues that we should remand this case to the trial court to conduct a hearing on defendant's claim in accordance with the United States Supreme Court's decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. We note that defendant first raised the issue of the State's allegedly discriminatory use of peremptory challenges in his initial appeal to this court. However, this court did not address the issue in its initial opinion in this case. (People v. Holman (1984), 103 Ill. 2d 133.) We therefore address it here.
In Batson, the Supreme Court held for the first time "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." (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722-23.) Prior to Batson, a defendant could only establish a prima facie case of discrimination by showing that the State had engaged in a pattern of excluding blacks from juries in a series of cases. See Swain v. Alabama (1965), 380 U.S. 202, 227, 13 L. Ed. 2d 759, 776, 85 S. Ct. 824, 839.
In Allen v. Hardy (1986), 478 U.S. 255, 258, 92 L. Ed. 2d 199, 204, 106 S. Ct. 2878, 2879-80, the Court held that " Batson should not be applied retroactively on collateral review of convictions that became final before [the Court's] opinion was announced." However, in Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716, the Court held that the rule announced in Batson should apply retroactively to all cases which had been pending on direct review or were not yet final at the time Batson was decided. The Court stated that the term "final" meant "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." (Griffith, 479 U.S. at 321 n.6, 93 L. Ed. 2d at 657 n.6, 107 S. Ct. at 712 n.6.) Defendant argues that in light of the Court's decision in Griffith, this case should be remanded to the circuit court for a hearing in accordance with the rule announced in Batson. We disagree.
Defendant, citing the definitions of "conviction" and "judgment" that are set forth in the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, pars. 1005-1-5, 1005-1-12), argues that the circuit court's decision did not constitute a "conviction" until defendant was sentenced. Since this court vacated the sentences from the initial trial, defendant claims that there could not have been a "conviction" until a new sentence was imposed after the resentencing hearing which, defendant notes, occurred after Batson was decided.
The problem with this argument is that even if we assume, without deciding, that defendant's interpretation of the Unified Code of Corrections is correct, defendant fails to explain, and we perceive no reason, why the Unified Code of Corrections' definitions of "conviction" and "judgment" should apply here. Instead, we find it more appropriate in this case, as this court previously did in defendant's initial appeal (see Holman, 103 Ill. 2d at 179), to consider the term "conviction" as meaning the finding that defendant was guilty of the crimes for which he was charged, and as being something separate and distinct from the term "sentence."
Applying the test set forth in Griffith, 479 U.S. at 321 n.6, 93 L. Ed. 2d at 657 n.6, 107 S. Ct. at 712 n.6, we find that the decision in Batson should not be applied in assessing whether the State discriminated against blacks in its use of peremptory challenges prior to defendant's initial trial. This court handed down its decision in defendant's direct appeal in 1984, almost two years before Batson was decided. In that initial decision, we explicitly affirmed his convictions of felony murder, armed violence and home invasion. (Holman, 103 Ill. 2d at 179.) The United States Supreme Court subsequently finally denied defendant's petition for certiorari in April 1985, one year before Batson was decided. (Holman v. Illinois (1985), 471 U.S. 1050, 85 L. Ed. 2d 342, 105 S. Ct. 2044.) Thus, although defendant could still collaterally attack his convictions through the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.), or through a Federal habeas corpus proceeding (28 U.S.C. § 2254 (1982)), defendant had exhausted all avenues of direct appeal concerning his convictions of felony murder, armed violence and home invasion before Batson was decided. We therefore reject defendant's argument that this case should be remanded for a Batson hearing concerning the State's use of peremptory challenges at the original trial.
We next consider contentions raised as to the sentencing hearing on remand. Defendant first claims that the sentencing Judge erred in refusing to excuse three venirepersons for cause. According to defendant, one venireperson should have been excluded for cause because his testimony during voir dire indicated that the venireperson believed defendant should be sentenced to death unless the venireperson could be persuaded otherwise. Such a viewpoint, defendant argues, would improperly place the burden of proof at the second stage of the sentencing hearing upon defendant.
The standard for determining whether a venireperson in a capital case should be excluded for cause because of his views concerning capital punishment "is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (Wainwright v. Witt (1985), 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526.) Our court has further stated that the denial of a motion to dismiss a venireperson for cause based upon his views in favor of the death penalty does not constitute "error unless a defendant shows that a 'juror on his jury believed that the death penalty should be imposed in every case where a defendant is convicted of murder.'" People v. Brisbon (1985), 106 Ill. 2d 342, 360, quoting People v. Caballero (1984), 102 Ill. 2d 23, 45.
In reviewing a trial Judge's decision whether to excuse a venireperson for cause, we must view the venireperson's statements "not in isolation but as a whole." (People v. Gaines (1981), 88 Ill. 2d 342, 357.) Accordingly, it is necessary to set forth the following lengthy colloquy which occurred between the venireperson, the sentencing Judge, and the defense counsel:
Q. Now, you understand that all people who are convicted of murders do not get the death penalty?
Q. Is that acceptable to you, that there are people who commit a murder who don't get the death penalty?
A. Well, to my estimation it all depends, I mean, the circumstances. I couldn't really answer that right now.
Q. Do you have a feeling as you sit there that anyone who commits a murder should receive the death penalty?
A. To my estimation if they're convicted I would think so.
Q. Okay. [Defendant] has been convicted of murder, so based on your last statement as you sit there now is it your belief he should receive the death penalty?
Q. Okay. Now this belief you have that people who are convicted of murder should receive the death penalty, has this been a longstanding belief?
Q. Okay. When did you first--
A. Well just, every time you open the paper, turn on the television that's all you hear.
Q. Okay. And based on your observation in life you've now formed an opinion that if convicted he probably should receive the death penalty and in any event as you sit there now you're kind of leaning towards the fact [defendant] should receive the death penalty?
Q. Now understand that as [defendant's] attorney I'm going to present evidence which I want to convince the jurors to accept which will lead them to a decision [defendant] should not receive the death penalty.
Now are you telling me that I'm going to have to change your mind?
Q. And I'm going to have to present evidence which not only must convince you, but must also change your mind based on the decision that you've made already, just based on his conviction?
Q. Good. Now this basis of your opinion if I can state at the time generally [ sic ] is your general opinion that anyone who commits a murder should probably receive the death penalty. Would that be a pretty good statement?
A. If it was a proven fact, yes.
Q. Okay. Now do you think its possible I could change your mind?
Q. Okay. But it's going to take a little bit of effort on my part?
Q. It's going to take more effort on my part to change your mind than you obviously have already decided that?
Q. On the State's side without hearing any evidence, is that what you're saying?
A. Yes, to a certain extent.
EXAMINATION BY THE COURT:
Q. Sometimes, sir, a person is not able to quite clearly articulate or set forth his feelings or basis for them. You've indicated to [defense counsel] that in your opinion anyone ...