APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOHN M. MANNION, JUDGE PRESIDING.
Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Scariano, McCORMICK, DiVITO
The opinion of the court was delivered by: Scariano
JUSTICE SCARIANO delivered the opinion of the court:
Defendant Frankie Lann was convicted by a jury on charges of armed robbery, kidnapping, aggravated kidnapping, and aggravated battery arising out of events occurring on May 25, 1983, and was sentenced to 13 years' imprisonment. On a prior appeal, we affirmed defendant's convictions and sentence, but remanded the case for a Batson hearing to determine if the State improperly used its peremptory challenges to exclude African-Americans from the jury. People v. Lann (1990), 194 Ill. App. 3d 623, 551 N.E.2d 276, 141 Ill. Dec. 283, appeal denied, (1990), 132 Ill. 2d 550, 555 N.E.2d 381.
The following facts were adduced at the Batson hearing before Circuit Judge John M. Mannion. *fn1 Defendant and the victim were both African-Americans, as was at least one of the two witnesses called by the State against him. In using seven of its 10 peremptory challenges, six of the seven potential jurors excused by the State were African-Americans. The petit jury, including one alternate, consisted of eight white men, two white women, one African-American man, and two African-American women. The jury cards, which were admitted into evidence, establish that but for the following three similar characteristics, the potential jurors excluded by the State were a heterogeneous group: (1) as already noted, six of the seven were African-Americans; (2) six of the seven were women; and (3) all seven were unmarried. *fn2 One of the arguments made by the prosecutor at the Batson hearing in opposition to defendant's racial discrimination claim and in justification of the State's claim as to the heterogeneity of the group was that five of the six of the excluded African-Americans were women.
Judge Mannion held that defendant had not made out a prima facie case of racial discrimination under Batson, basing his decision on the following factors: (1) the percentage of African-Americans on the petit jury was almost identical to the percentage of African-Americans in Cook County; (2) the State used only seven of its 10 peremptory challenges; (3) the State did not challenge three African-American venire members who ultimately formed one-fourth of the petit jury; (4) the State had in mind the type of juror that it was looking for; and (5) the Judge had presided over several cases where the assistant State's Attorney in question was the prosecutor and, to his knowledge, the prosecutor had never even been accused of systematically excluding African-Americans.
Defendant appeals Judge Mannion's determination that he did not make out a prima facie case of racial discrimination under Batson. He also alleges for the first time that the State violated Batson during his trial because it improperly used its peremptory challenges to exclude women from the petit jury, conceding that he did not object to the prosecutor's alleged gender discrimination during voir dire, in his post-trial motion, or in the original appeal of his conviction, nor during the Batson hearing after we remanded the case for that purpose.
Prior to 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, a defendant was entitled to a reversal of his conviction in a case where the prosecutor had practiced purposeful racial discrimination in the selection of jurors only by establishing the State's systematic and intentional pattern of excluding venire members 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, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) Batson, however, expressly overruled Swain and held that a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury based solely on 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 1723.) In Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, the Supreme Court declared that the rule in Batson applies to all cases which were pending on direct review at the time that it handed down its Batson decision. This is such a case.
Batson established a two-step procedure for resolving defendant's claim that the prosecution used its peremptory challenges in a racially discriminatory manner. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of his jury, and if he or she succeeds in making such a case, the burden then shifts to the State to come forward with a race-neutral explanation for challenging each of the venirepersons. Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.
In order to establish a prima facie case of discriminatory jury selection under Batson, a defendant initially had to show that he was a member of a cognizable racial group and that the prosecutor had exercised his peremptory challenges to remove members of the defendant's race from the venire panel. ( Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) Subsequently, however, the United States Supreme Court, held in Powers v. Ohio (1991), 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366, that "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." In order to make a prima facie showing of discrimination after Powers, the defendant is required to raise only an inference that the prosecutor exercised peremptory challenges to remove venire members based upon race. ( People v. Andrews (1992), 146 Ill. 2d 413, 424, 588 N.E.2d 1126, 1133, 167 Ill. Dec. 996.) In doing so, the defendant is entitled to rely on the fact that peremptory challenges "constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate'" ( Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723 quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 97 L. Ed. 1244, 1247-48, 73 S. Ct. 891, 82.) The defendant must show that this fact and any other relevant circumstances raise an inference that the prosecutor peremptorily challenged venirepersons on account of their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.
Although the United States Supreme Court has not provided an exhaustive list of factors that a trial court should consider in deciding whether a defendant has made out a prima facie case of racial discrimination, the Illinois Supreme Court has consistently identified the following indicia as "relevant circumstances" which trial courts should consider in making the prima facie determination: (1) a pattern of strikes against African-American jurors; (2) the prosecutor's questions and statements made during voir dire examination and in exercising his challenges; (3) the disproportionate use of peremptory challenges against African-Americans; (4) the level of African-American representation in the venire as compared to the jury; (5) whether the excluded African-Americans were a heterogeneous group sharing race as their only common characteristic; and (6) the race of the defendant, the victim and the witnesses. People v. Coleman (1993), 155 Ill. 2d 507, 514, 617 N.E.2d 1200, 1204, 187 Ill. Dec. 479; People v. Pecor (1992), 153 Ill. 2d 109, 127, 606 N.E.2d 1127, 1135, 180 Ill. Dec. 50; Andrews, 146 Ill. 2d at 426, 588 N.E.2d at 1134; People v. Henderson (1990), 142 Ill. 2d 258, 287-88, 568 N.E.2d 1234, 1248-49, 154 Ill. Dec. 785; People v. Hooper (1989), 133 Ill. 2d 469, 508, 552 N.E.2d 684, 701-02, 142 Ill. Dec. 93; People v. Mahaffey (1989), 128 Ill. 2d 388, 412, 539 N.E.2d 1172, 1184, 132 Ill. Dec. 366; People v. Evans (1988), 125 Ill. 2d 50, 63-64, 530 N.E.2d 1360, 1365, 125 Ill. Dec. 790.
Other factors occasionally identified by the supreme court as relevant to a prima facie Batson case are: (1) the trial court's knowledge of local conditions and local prosecutors ( Andrews, 146 Ill. 2d at 435, 588 N.E.2d at 1134; Evans, 125 Ill. 2d at 67, 530 N.E.2d at 1366-67); (2) whether the prosecutor used all of his peremptory challenges ( Hooper, 133 Ill. 2d at 508, 552 N.E.2d at 701-02; accord People v. Knott (1991), 224 Ill. App. 3d 236, 251, 586 N.E.2d 479, 490, 166 Ill. Dec. 521, appeal granted, (1992), 145 Ill. 2d 640, 596 N.E.2d 634, vacated as moot, (1993), Ill. 2d , 621 N.E.2d 611); and (3) whether the victim and the stricken venirepersons were of the same race. ( Andrews, 146 Ill. 2d at 425, 588 N.E.2d at 1137.) Additionally, although the supreme court has warned that "mere numbers" do not establish a prima facie case ( Henderson, 142 Ill. 2d at 258, 568 N.E.2d at 1248; Mahaffey, 128 Ill. 2d at 414, 539 N.E.2d at 1184), "the exclusion of even just one minority venireperson on account of race is unconstitutional and * * * requires reversal of the conviction below." ( Andrews, 146 Ill. 2d at 434, 588 N.E.2d at 1138; People v. Harris (1989) 129 Ill. 2d 123, 175, 544 N.E.2d 357, 380, 135 Ill. Dec. 861.) Finally, this court reviews a trial court's determination as to whether a defendant has established a prima facie case of discrimination under the manifest weight of the evidence standard. Andrews, 146 Ill. 2d at 425, 588 N.E.2d at 1133; Evans, 125 Ill. 2d at 64, 530 N.E.2d at 1365-66.
Defendant contends that Judge Mannion's judgment that he did not present a prima facie case of racial discrimination was against the manifest weight of the evidence; on the contrary, he maintains, a consideration of the factors relevant to a prima facie determination leads to the Conclusion that the evidence clearly establishes that the prosecutor peremptorily dismissed jurors on account of their race, and that the trial court considered factors irrelevant to a prima facie determination. We cannot agree.
The first factor relevant to our consideration is whether there was evidence of a "pattern of strikes against black jurors." ( Evans, 125 Ill. 2d at 63, 530 N.E.2d at 1365.) In People v. Hope (1991), 137 Ill. 2d 430, 560 N.E.2d 849, 148 Ill. Dec. 252, vacated on other grounds, U.S. , 115 L. Ed. 2d 966, 111 S. Ct. 2792, modified on reh'g, (1992), 147 Ill. 2d 315, 589 N.E.2d 503, 168 Ill. Dec. 103, the court explained:
"To create a pattern, strikes should do more than occasionally involve venire members of a certain race. The strikes should affect those members to such a degree or with such a lack of apparent nonracial explanation as to suggest the possibility of racial motivation." Hope, 137 Ill. 2d at 463, 560 N.E.2d at 864; accord Andrews, 146 Ill. 2d at 429, 588 N.E.2d at 1134.
In this case, the prosecutor struck six of the nine African Americans in the venire. We do not deem it to have been against the manifest weight of the evidence for the court to have concluded that these figures did not constitute a pattern of strikes against African-American venirepersons. Compare Henderson, 142 Ill. 2d at 288-91, 568 N.E.2d at 1249 (six of 11 African-American venirepersons struck did not constitute a pattern of strikes); People v. Garrett (1990), 139 Ill. 2d 189, 204-05, 564 N.E.2d 784, 791, 151 Ill. Dec. 329 (six of nine African-American venirepersons struck did not constitute a pattern of strikes); People v. Brisbon (1989), 129 Ill. 2d 200, 230-31, 544 N.E.2d, 297, 312, 135 Ill. Dec. 801 (two of three African-American venirepersons struck did not constitute a pattern of strikes), with Harris, 129 Ill. 2d at 169-73, 544 N.E.2d at 378 (15 of 17 African-American venirepersons struck from jury constituted a pattern of strikes); People v. Mack (1989), 128 Ill. 2d 231, 237, 538 N.E.2d 1107, 1110, 131 Ill. Dec. 551 (13 of 14 African-American venirepersons struck constituted a pattern of strikes); People v. McDonald (1988), 125 Ill. 2d 183, 196-97, 530 N.E.2d 1351, 1357, 125 Ill. Dec. 781 (16 of 16 African-American venirepersons struck constituted a pattern); People v. Johnson (1990), 199 Ill. App. 3d 798, 803-04, 557 N.E.2d 565, 568, 145 Ill. Dec. 795 (15 of 17 African-American venirepersons struck constituted a pattern); People v. Seals (1987), 153 Ill. App. 3d 417, 422, 505 N.E.2d 1107, 1111, 106 Ill. Dec. 316 (six of seven African-American venirepersons struck constituted a pattern).
The statements made by the prosecutor during voir dire and while exercising his challenges constitutes the second factor relevant to a prima facie determination. Defendant charges that the following statements made by the prosecutor during voir dire evidenced his intent to discriminate against African-Americans:
"Judge, I only have one thing to add. So far the Defense has excused six people, and they are all White. I just want the record to reflect that.
I would simply add that the defense excused nine individuals, of which seven were White, one Oriental or White."
Judge Mannion did not comment on these statements when he made his ruling; clearly, however, they can be interpreted simply as an attempt to preserve the record instead of playing "a game of black and white tag" as suggested by defendant. This is especially true when the remarks are considered in light of the court's comments regarding his knowledge of the prosecutor's history gained in previous trials.
The third factor relevant to establishing a prima facie case is whether the prosecutor used a disproportionate number of peremptory challenges against African-Americans. This inquiry is different from the question of whether the prosecutor engaged in a pattern of strikes against African-Americans. The proportionality analysis compares the number of peremptories used against African-Americans versus the number used against whites; whereas the pattern analysis compares the number of African-Americans peremptorily challenged versus the number of African-Americans that could have been, but were not, struck by the State. See McDonald, 125 Ill. 2d at 196-97, 530 N.E.2d at 1357.
In the case at bar, the prosecutor used six peremptory challenges against African-American venirepersons and one against a white venireperson juror. There is no question, based on either precedent or common sense, but that the prosecutor's use of six of seven strikes against African-Americans constitutes a "disproportionate use of peremptory challenges." See e.g., Andrews, 146 Ill. 2d at 430, 588 N.E.2d at 1136 (eight of eight peremptories used against blacks disproportionate); People v. Gaston (1992), 227 Ill. App. 3d 486, 489, 592 N.E.2d 131, 133-34, 169 Ill. Dec. 644 (four of five peremptories used against blacks found to constitute a disproportionate use of peremptories); People v. Nicholson (1991), 218 Ill. App. 3d 273, 283, 577 N.E.2d 1313, 1320, 160 Ill. Dec. 742 (five of seven strikes against blacks disproportionate amount).
The fourth factor which we consider, and one that our supreme court has found to be "highly relevant" ( Andrews, 146 Ill. 2d at 431, 588 N.E.2d at 1136; Hope, 137 Ill. 2d at 465, 560 N.E.2d at 865), is whether the venirepersons excluded by the prosecutor were a heterogeneous group sharing race as their only common characteristic. In the case at bar, the evidence demonstrates that the excluded venirepersons shared the following two common traits besides being African-American: 1) six of the seven excluded venirepersons were women; and 2) all of the excluded members were unmarried. While we hold in part II of this opinion that the former characteristic (gender) is not a constitutionally permissible basis for excluding potential jurors, our supreme court has found the latter characteristic (marital status) to be an acceptable reason for peremptorily challenging venire members. ( Henderson, 142 Ill. 2d at 289, 568 N.E.2d at 1244). Accordingly, we find it "highly relevant" that the excluded venire members shared a common characteristic besides being of the same race. *fn3
The fifth factor our supreme court has identified as important to establishing a prima facie determination is the level of African-American representation in the venire as compared to the jury. In this case, the percentage of African-Americans in the venire panel was approximately 32% (9 of 28), while the percentage of African-Americans on the petit jury was 23% (3 of 13). Our supreme court has identified such a 9% difference as "slightly * * * suggestive [of] purposeful discrimination." ( Henderson, 142 Ill. 2d at 290-91, 568 N.E.2d at 1250.) Therefore, we likewise consider the percentage difference here only slight evidence of discriminatory intent by the prosecutor.
Another factor that the supreme court has consistently taken into consideration in determining whether a defendant has presented a prima facie case is the race of the defendant, the victim and the witnesses. Here, it is uncontested that defendant, the victim, and at least one of the witnesses who testified were African-Americans. The Illinois supreme court has stated that "in a case where both the defendant and victim are black, their racial characteristics do not warrant an inference, at the prima facie ...