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June 30, 1994


Appeal from Circuit Court of Vermilion County. No. 90CF430. Honorable John P. O'Rourke, Judge Presiding.

As Corrected September 6, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring, Honorable Robert W. Cook, J., Specially Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In December 1991, a jury convicted defendant, Vincent Britt, of two counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)), and one count each of aggravated arson (Ill. Rev. Stat. 1989, ch. 38, par. 20-1.1(a)), residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-3(a)), attempt (robbery) (Ill. Rev. Stat. 1989, ch. 38, pars. 8-4(a), 18-1(a)), and theft of property having a value in excess of $300 (felony theft) (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(b)(4)). The trial court imposed a sentence of natural life in prison for the murders, and extended-term sentences of 60 years for aggravated arson, 30 years for residential burglary, and 10 years each for attempt (robbery) and felony theft. The court ordered the 60-year sentence for aggravated arson to run consecutively to the murder sentence and all other sentences to run concurrently.]

Defendant appeals, arguing that (1) his constitutional rights were violated by the State's exercise of peremptory challenges in a racially discriminatory manner; (2) the jury returned legally inconsistent guilty verdicts of both first degree murder and involuntary manslaughter; (3) the trial court erred in sustaining an objection during his cross-examination of the codefendant's testimony; (4) a witness' reference to a polygraph examination denied him a fair trial; (5) the trial court erred by entering a conviction for aggravated arson based upon the same conduct supporting the first degree murder convictions; and (6) the trial court erred in sentencing him to an extended term for offenses other than first degree murder.

We disagree with each of defendant's arguments and affirm his convictions and sentences.


Defendant does not challenge the sufficiency of the evidence supporting his convictions. Accordingly, we review the evidence presented at trial only to the extent necessary to place the issues in this appeal in their appropriate context. During the late evening hours of September 22 or early morning hours of September 23, 1990, defendant and Brian Brandon went to the home of the victims, Warren and Delores Johnson, both of whom were over 60 years of age. Defendant and Brandon had earlier discussed stealing aluminum cans or copper wiring from the Johnson residence, but once there decided instead to ask to borrow some money. While Brandon waited outside, defendant knocked on the door, and Mr. Johnson let him in. About a half hour later, defendant rejoined Brandon outside, telling him that "he did what he had to do," which Brandon interpreted to mean defendant beat up Mr. Johnson.

At that point, defendant and Brandon both entered the house. Mrs. Johnson, who was physically handicapped and could not walk without assistance, was in bed. Defendant and Brandon asked Mr. Johnson for money, who responded that he did not have any. Defendant stated that he did not believe him and threatened to set Mrs. Johnson on fire unless Mr. Johnson complied. Defendant then pushed Mr. Johnson aside and went into the bedroom. After Mr. Johnson again denied having any money, defendant set Mrs. Johnson's nightgown on fire. Defendant and Mr. Johnson began to fight, and Brandon left the Johnson residence and ran away. Defendant eventually knocked Mr. Johnson unconscious by a blow to his head. Defendant then brought several old tires from the back porch into the kitchen and moved the refrigerator against the door, leaving a small space through which he could escape while blocking in the physically larger Johnsons. Defendant ignited the tires in the kitchen and left the residence.

In the early morning hours of September 23, a passerby noticed the Johnson house on fire and called the authorities. Both Mr. and Mrs. Johnson died from fire and smoke inhalation. Mrs. Johnson most likely died from the fire lit in the kitchen that consumed the house, rather than from the fire lit on her torso.

At some point between September 23 and October 12, 1990, defendant returned to the Johnson residence and stole a lawnmower.

On October 31, 1990, approximately 6,700 feet of insulated copper wire, weighing nearly 130 pounds, was stolen from CSX Transportation. The police followed drag marks to the home of defendant's relatives. Later, the police interviewed Brandon regarding the theft of the copper wire and the earlier fire at the Johnson residence, ultimately leading to defendant's arrest for both offenses.

As part of an agreement with the State, Brandon pleaded guilty to aggravated arson, residential burglary, and attempt (robbery) in exchange for the State's agreement that his sentence would not exceed 30 years. Brandon testified against defendant at defendant's trial as part of this agreement.


A. The Batson Challenge

Defendant argues that the State violated his rights under the equal protection clause of the fourteenth amendment of the United States Constitution by using its peremptory challenges to exclude blacks from the jury. In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court held that the State may not use its peremptory challenges to strike prospective jurors solely on the basis of their race. Batson established a three-step analysis to determine whether a particular peremptory challenge was proper. First, the defendant must establish a prima facie case of purposeful discrimination in the State's use of the peremptory challenge. ( Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) If the defendant establishes the prima facie showing, the burden shifts to the State to provide a "clear and reasonably specific" race-neutral explanation for each challenge in question. ( Batson, 476 U.S. at 97-98 n.20, 90 L. Ed. 2d at 88-89 n.20, 106 S. Ct. at 1723-24 n.20.) Defense counsel may then rebut the prosecutor's reasons as being pretextual. People v. Mitchell (1992), 152 Ill. 2d 274, 288, 604 N.E.2d 877, 885, 178 Ill. Dec. 354.

The State's reason for exercising a peremptory challenge must be race neutral. The State must demonstrate to the trial court that the stricken prospective juror exhibited a "specific bias" related to the particular cause to be tried other than being the same race as the defendant. ( People v. Andrews (1993), 155 Ill. 2d 286, 293, 614 N.E.2d 1184, 1189, 185 Ill. Dec. 499.) In other words, the State's peremptory challenge must be "based on something other than the race of the venireperson." People v. Hudson (1993), 157 Ill. 2d 401, 428, 626 N.E.2d 161, 172, 193 Ill. Dec. 128.

In this case, the trial court found that defendant successfully established the prima facie showing. At that point, the burden shifted to the State to offer a legitimate, raceneutral reason for each of its contested peremptory challenges. After considering the State's explanation and defendant's response, the trial court rejected defendant's claim and found that the State's use of each peremptory challenge was legitimate.

Once the State offers a race-neutral explanation and the trial court rules on the ultimate issue of intentional discrimination, the preliminary question of whether defendant established a prima facie showing becomes moot. ( People v. Smith (1992), 236 Ill. App. 3d 812, 814, 602 N.E.2d 946, 949, 177 Ill. Dec. 51; Hernandez v. New York (1991), 500 U.S. 352, , 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866.) Thus, we need only address the legitimacy of the State's proffered explanations.

The exclusion of even one prospective juror on account of race is unconstitutional and requires reversal of a defendant's conviction. ( Andrews, 155 Ill. 2d at 294, 614 N.E.2d at 1189.) We must therefore examine the State's explanations for excluding each prospective juror against whom it exercised a peremptory challenge. Initially, we note that the State offered at least three, and in most cases four, reasons for its peremptory challenges against each prospective juror at issue here. None of these explanations referred to the individual's race. If a single explanation offered by the State is acceptable, the State's use of the peremptory challenge is legitimate. Andrews, 155 Ill. 2d at 294, 614 N.E.2d at 1189 ("resolution of the issue now before us, however, requires only that we accept one of the explanations advanced by the State with respect to each venire member").

Defendant notes that only four of the 78 members of the total venire were black, and all four were ultimately excused. However, two of those individuals were excused for cause. Batson and its progeny were only intended to prevent the racially discriminatory use of peremptory challenges. Therefore, prospective jurors excused by the court for cause are entirely irrelevant to a Batson analysis, and we examine the circumstances of only those prospective jurors excused as a result of the State's peremptory challenges. In the same vein, we add that the numbers of blacks in the original venire is similarly irrelevant to a Batson analysis. Before this court, defendant has repeatedly emphasized that only four of the 78 members of the venire were black, but our analysis is the same regardless of whether the number is 14 of 78 or four of 78.

The initial determination of the legitimacy of the State's proffered explanation for a peremptory challenge rests with the trial court, and this court will defer to that court's Batson findings. However, we have observed that some courts have employed a "clearly erroneous" standard ( Hudson, 157 Ill. 2d at 428, 626 N.E.2d at 172; Andrews, 155 Ill. 2d at 293-94, 614 N.E.2d at 1189), while others have used the "against the manifest weight of the evidence" test ( Mitchell, 152 Ill. 2d at 289, 604 N.E.2d at 886; Smith, 236 Ill. App. 3d at 815, 602 N.E.2d at 949-50 ). Surprisingly, this distinction has so far gone unnoticed.

In Hernandez, the United States Supreme Court discussed the nature of the trial court's findings in a Batson hearing as follows:

"In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial Judge's province.' Wainwright v. Witt, 469 U.S. 412, 428, [105 S. Ct. 844, 854, 83 L. Ed. 2d 841] (1985), citing Patton v. Yount, 467 U.S. 1025, 1038, [104 S. Ct. 2885, 2892, 81 L. Ed. 2d 847] (1984)." Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869.

In Mitchell, the Supreme Court of Illinois stated that the appropriate standard of review of a trial court's Batson findings is whether they are "against the manifest weight of the evidence." ( Mitchell, 152 Ill. 2d at 288-89, 604 N.E.2d at 886.) The court deemed this the correct standard because "the trial court's [Batson] determination is a matter of fact, involving an evaluation of credibility." ( Mitchell, 152 Ill. 2d at 288, 604 N.E.2d at 886.) Accordingly, the court employed the typical standard for reviewing a determination of a factual issue: was the ruling against the manifest weight of the evidence?

In Hudson, however, the court also discussed the standard of review and stated that "because the trial Judge's finding constitutes a credibility determination, it should be given great deference [citation] and will not be overturned unless it is clearly erroneous [citation]." ( Hudson, 157 Ill. 2d at 428, 626 N.E.2d at 172.) Hudson thus used the same analysis to articulate "clearly erroneous" as the correct standard of review.

We conclude that "clearly erroneous" and "manifestly against the weight of the evidence" are equally deferential. "Clearly erroneous" simply describes the degree of error the trial court's ruling must reach before it constitutes a ruling "against the manifest weight of the evidence." (See Hernandez, 500 U.S. at , 114 L. Ed. 2d at 412, 111 S. Ct. at 1871-72, quoting Anderson v. Bessemer City (1985), 470 U.S. 564, 574, 84 L. Ed. 2d 518, 528, 105 S. Ct. 1504, 1511 ("'where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous' " (emphasis added)).) As such, "against the manifest weight of the evidence" is the standard of review, and "clearly erroneous" describes the necessary appellate evaluation of the trial court's findings in order to reverse. We also note that this court recently endorsed "against the manifest weight of the evidence" as the appropriate standard. Smith, 236 Ill. App. 3d at 815, 602 N.E.2d at 949-50.

1. Prospective Juror Delia White

Defendant claims that the State used a peremptory challenge against prospective juror Delia White, a black female, because of her race. At the Batson hearing, the State offered the following reasons for this peremptory challenge: (1) White previously served on a criminal jury which returned a not guilty verdict; (2) her cousin was a convicted murderer serving a life sentence; (3) one of the State's potential witnesses, a multiple felon, had dated her daughter; and (4) she hesitated when responding to questions regarding the use of codefendant testimony. Each of these reasons constitutes a legitimate, race-neutral reason to exclude a potential juror. See People v. Walker (1989), 191 Ill. App. 3d 382, 385, 547 N.E.2d 1036, 1037, 138 Ill. Dec. 610 (State's peremptory challenge of prospective juror found race neutral where juror had served on prior "not guilty" jury and where juror's relative was convicted of theft); Andrews, 155 Ill. 2d at 303, 614 N.E.2d at 1193 (peremptory challenge based upon prospective juror's hesitancy in answering questions is proper and race neutral).

Defendant, however, argues that the State's explanations are pretextual because it failed to strike other prospective jurors with similar characteristics. Defendant notes that the State accepted the following members of the venire: (1) Carroll Darrow, a white male, who previously served on both a civil and criminal jury, each of which returned verdicts of not guilty; (2) Jack Tate, a white male, whose father-in-law participated in a murder-suicide; and (3) Ronald Johnson, a white male, who was convicted of misdemeanor possession of marijuana in 1987, and who was solicited to commit murder for hire (although he did not commit the offense). Defendant also attempts to explain White's hesitancy in answering questions during voir dire as being due to her age.

However, the Supreme Court of Illinois recently reaffirmed that "the mere fact that the State challenges a black venireperson for a reason which is equally applicable to a white juror does not show in and of itself that the offered explanation is pretextual." ( Hudson, 157 Ill. 2d at 431, 626 N.E.2d at 173.) The court explained as follows:

"'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 peremptory challenge, may, in a second prospective juror, be outweighed by other, favorable characteristics.' ( People v. Mack (1989), 128 Ill. 2d 231, 239, 131 Ill. Dec. 551, 538 N.E.2d 1107.)

Consequently, a peremptory challenge may be based on a combination of traits. A particular trait that justifies exclusion of a venireperson can be acceptable in a juror who has a different combination of traits which distinguish that juror from those peremptorily challenged." Hudson, 157 Ill. 2d at 431, 626 N.E.2d at 173.

Prospective juror White is easily distinguishable from each of the other prospective jurors cited by defendant. Darrow served in the military during World War II and Korea, earned a master's degree, and had been the mayor of Potomac. His cousin, with whom he had a close relationship, was a Judge in Montana. Darrow knew volunteer firemen, was the victim of a fire himself, and knew none of the witnesses in this case. Finally, Darrow indicated that he considered the death penalty to be a fair punishment. In contrast, White had no military experience, only two years' college education, knew several of the witnesses involved in the case, and expressed no opinion regarding the death penalty.

White is also distinguishable from Tate who, unlike White, had served on a jury which returned a guilty verdict. Further, the State excused two other potential jurors, both white, who had close relationships with individuals who had participated in criminal activity or had criminal records. The State's challenges to these other prospective jurors indicates that it used these criteria in a racially nondiscriminatory and consistent manner.

Johnson also exhibited several characteristics that could be deemed reasonably attractive to the prosecution. After being approached regarding a murder-for-hire scheme, Johnson notified the police and worked with the State, ultimately testifying as a prosecution witness. Also, he served in the Army for three years and National Guard for one year, receiving honorable discharges from each.

Although each of these members of the venire may have shared a particular characteristic with White, each contained other traits which the State could have reasonably considered favorable as well. Thus, we conclude that the trial court's finding that the State's peremptory challenge to White was race-neutral was not against the manifest weight of the evidence. See Hudson, 157 Ill. 2d at 431, 626 N.E.2d at 173.

2. Prospective Juror Willie Young

Defendant also claims the State used a peremptory challenge to strike prospective juror Willie Young, a black male, because of his race. The State explained that it based its peremptory challenge to Young on the following factors: (1) Young stated that he knew defendant's father, an anticipated witness in the case; (2) Young knew of defendant and his reputation; (3) Young was acquainted with several other potential witnesses; (4) the State believed that Young might be sympathetic to a young man such as defendant; and (5) the State recently prosecuted a high-profile case against an individual with the same surname. Additionally, the State explained that it interpreted Young's comments regarding defendant's father, a felon with multiple convictions, as speaking favorably of him. Each of these reasons again constitutes a facially valid, race-neutral reason to exercise a peremptory challenge. Nonetheless, defendant claims these reasons are merely pretext because they were, in part, shared by other prospective jurors whom the State did not peremptorily excuse.

The State's concerns about Young's acquaintance with defendant's father and other potential witnesses constitute legitimate, race-neutral reasons for exercising a peremptory challenge even though these relationships did not rise to the level justifying a challenge for cause. (See Mitchell, 152 Ill. 2d at 291, 604 N.E.2d at 887.) Indeed, any basis for a peremptory challenge should always be less than that required to support a challenge for cause. Otherwise, any legitimate peremptory challenge would necessarily always constitute a sufficient grounds for a challenge for cause.

Noting that the State introduced defendant's father's testimony, defendant argues that any acquaintance Young might have had with him would necessarily bolster his credibility and hence favor the State, thereby belying its argument for peremptorily challenging Young. However, the issue is not whether Young's past association with defendant's father would affect that witness' credibility in some fashion, but whether it might affect Young's independent and objective assessment of the overall case. A peremptory challenge for any reason--or no reason--is legitimate unless exercised in a racially discriminatory fashion. (See Walker, 191 Ill. App. 3d at 385-86, 547 N.E.2d at 1038.) The State's concerns about Young's association with defendant's father and other witnesses and whether that association might affect his ability to assess the State's case constitute legitimate, race-neutral reasons for peremptorily excusing him.

Defendant notes that the State accepted potential juror Terry Sherman, a white male, who knew defendant's aunt, a potential defense witness. He argues that the State's acceptance of Sherman demonstrates that its proffered reason for excusing Young based on his association with potential witnesses is mere pretext. However, Sherman is distinguishable from Young because he knew defendant's aunt only casually. Further, the State could reasonably view Sherman as possessing several desirable traits that overcame any concerns about his knowledge of defendant's aunt, including his having (1) four years' service in the Marine Corps as a combat engineer, (2) knowledge of first aid and cardiopulmonary resuscitation (CPR), and (3) relatives who had died in a fire.

Defendant also challenges the State's proffered explanation that Young would be sympathetic to a young man such as defendant. The State argued that it based this belief upon the fact that Young was involved in both little league and pony league teams. A prospective juror's sympathy is a legitimate reason to excuse him peremptorily, especially in a case such as this, where the venire was informed of the possibility that the prosecutor might seek the death penalty. (See Andrews, 155 Ill. 2d at 297, 614 N.E.2d at 1191 ("[a] prosecutor, particularly in a case such as this where the death penalty was a possibility, would be concerned with whether a juror would be unduly sympathetic toward the defendant").) However, defendant counters that several other prospective jurors accepted by the State also were involved in different civic and youth organizations. He specifically notes the following members of the venire: (1) David Smith, president of a youth ...

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