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09/29/94 PEOPLE STATE ILLINOIS v. ROBERT THOMAS

September 29, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT THOMAS, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN A. WASILEWSKI, JUDGE PRESIDING.

As Corrected October 20, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Hoffman, Cahill, Johnson

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Robert Thomas, appeals from a jury's verdict convicting him of two counts of first degree murder, two counts of theft, and one count of aggravated possession of a stolen motor vehicle. (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(2), 16-1(a)(1); ch. 95 1/2, par. 4-103.2(7).) We consider: (1) whether it was clearly erroneous for the trial Judge to find that the State did not discriminate on the basis of race when it exercised its peremptory challenges during jury selection; (2) whether the State's closing argument appealed to the jury's passion and prejudice and misstated the law; (3) whether it was plain error to give the jury the concluding jury instruction which was a modified pattern instruction and the first degree murder issues instruction; and (4) whether the State presented sufficient evidence to convict the defendant of first degree murder beyond a reasonable doubt. For the following reasons, we affirm.

The defendant was tried for two counts of first degree murder, two counts of felony murder based on theft, aggravated possession of a stolen motor vehicle, and two counts of theft. The State presented the following evidence in a jury trial.

On February 4, 1991, at about 7 p.m., a sales clerk in a department store saw a woman take merchandise from the racks and run out the exit doors into a silver Riviera. There were two other people in the car, and the car sped away. At about the same time, in a different department store in the same shopping mall, a security guard saw two women take arm loads of merchandise from the store without paying for it. The guard saw the women jump into a silver Buick Riviera which was being driven by a man, and he saw part of the license plate number. He notified the police.

An off-duty police officer who was driving home from work in his car heard a report of the incident over his portable police radio. As he was driving, he noticed a blue Buick Riviera travelling on the same street with three people inside. The driver of the Riviera was later identified as the defendant. As the Riviera was travelling down the street, the passengers repeatedly looked forward and backward. The officer notified the dispatcher that he was following possible suspects.

While the off-duty officer was following the car, the defendant went through a red light. Because he was leaving his jurisdiction, the officer requested assistance from other police departments. Another officer in a police car responded and the two cars were following the defendant's car; they were travelling at about 45 to 50 miles per hour. When the defendant saw a police car pass him in the opposite direction, he abruptly changed lanes directly in front of the police car that was following him. The police car then turned its siren and emergency lights on and the defendant pulled his car over and stopped. However, when the officer left the police car and approached the defendant's car, the defendant sped away.

The defendant resumed driving at a high rate of speed in the left lane of the street while there was traffic on both sides of the street. He drove toward and around a police car which was on the median and drove into oncoming traffic almost striking another car. He then returned to the right side of the street where the traffic was heavily congested and passed through an intersection. The defendant was travelling at 70 miles per hour, and at this point, several police cars were following with their sirens and emergency lights activated.

Before the next intersection, there was an overpass where the road dipped down and came back up a hill. When the off-duty police officer was asked at trial whether he could see "what [was] going on" in the intersection as he drove up the hill, he testified that he could not. The defendant did not attempt to slow down at the intersection even though the traffic light was red. The cross street traffic had a green light. The defendant went through the red light and collided with a car that was travelling in the cross traffic. The two people in that car, Eugene and Janet Strepek, died as a result of the injuries they sustained in the collision.

Subsequently, the police determined that the car the defendant was driving was stolen and the merchandise taken from the stores was found in the car. The merchandise taken from each store exceeded $300.

The defendant did not present evidence.

The jury returned a verdict of guilty of two counts of first degree murder, guilty of aggravated possession of a stolen motor vehicle, and guilty of two counts of theft. After his post-trial motion was denied, the defendant was sentenced to prison terms of natural life without possibility of parole for the two counts of first degree murder, 15 years for aggravated possession of a stolen motor vehicle, and five years for each count of theft. He now appeals.

I.

The defendant argues that the State denied him the right to equal protection when it exercised five peremptory challenges to exclude black venirepersons from the jury.

The equal protection clause prohibits the State from exercising its peremptory challenges to discriminate against prospective jurors on the basis of race. ( Batson v. Kentucky (1986), 476 U.S. 79, 85, 90 L. Ed. 2d 69, 80, 106 S. Ct. 1712.) In Batson, the Court established a procedure for resolving a defendant's claim that the State used its peremptory challenges to discriminate against venirepersons of a certain race. The defendant must first present a prima facie case of purposeful discrimination in the State's use of its peremptory challenges. ( Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) If the trial Judge finds that the defendant made that showing, the burden shifts to the State to provide a clear and reasonably specific race-neutral explanation for challenging each venireperson. ( Batson, 476 U.S. at 97 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1723 n.20.) The trial Judge must then consider those reasons and determine if the defendant established that the State exercised its peremptory challenges to purposefully discriminate against venirepersons on the basis of race. ( Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.) "This two-step procedure should not be collapsed into a single, unitary Disposition that dilutes the distinctions between a defendant's prima facie showing of discrimination and the State's production of neutral explanations for its peremptory challenges." People v. Wiley (1993), 156 Ill. 2d 464, 475, 622 N.E.2d 766, 771, 190 Ill. Dec. 736; see also People v. Bohanan (1993), 243 Ill. App. 3d 348, 612 N.E.2d 45, 183 Ill. Dec. 788.

When the defendant in this case moved for mistrial under Batson, the State had exercised four of its peremptory challenges against black venirepersons. The defendant based his motion on the fact that he was also black, the excluded venirepersons had different backgrounds, and the State's witnesses were white. The trial Judge responded: "although I don't believe that there is a prima facie case made at this point [in] time, I believe that there would be certain panels under the Illinois Appellate Court First District that would substitute my opinion. So I am going to require the State to state the reasons why these jurors were excused." After the State gave its reasons for striking the four venirepersons, the Judge stated: "I have not found that there was even a prima facie case based on my opinion," and then discussed why he believed the State presented race-neutral reasons for striking each of the venirepersons. In denying the defendant's motion, the Judge noted: "So again I have not found a prima facie case. I believe the reasons are legitimate reasons." Subsequently, the defendant renewed the motion after the State used a fifth peremptory challenge against a black venireperson. The Judge requested the State's response and the State presented its reasons for excluding the venireperson. Without deciding whether the defendant established a prima facie case, the Judge found that the State's reason for excluding the venireperson was race-neutral and denied the renewed motion.

Generally, the first question in reviewing a Batson claim is whether the defendant presented a prima facie case that the State purposefully discriminated against certain venirepersons in exercising its peremptory challenges. However, the defendant in the present case contends that this court need not address whether he established a prima facie case because that issue became moot when the State offered its reasons for exercising the peremptory challenges and the trial court ruled on the ultimate issue of intentional discrimination. The ...


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