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November 23, 1994


Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna, Judge Presiding.

Justice Theis delivered the opinion of the court: Johnson, J., concurs. Hoffman, P.j., specially concurs.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Thomas Smith was charged and convicted of attempted first degree murder and armed robbery. He was sentenced to two concurrent sentences of 15 years each. Smith appeals this conviction, raising three issues for our review: (1) whether, under Batson v. Kentucky, Smith was denied equal protection during the jury selection process; (2) whether the admission of the complainant's prior consistent statements to bolster trial testimony denied Smith a fair trial; and (3) whether Smith was denied a fair trial because of the prosecutor's remarks during closing statements. We are also asked to review the dismissal of Smith's post-conviction petition. After reviewing the record and the arguments in this case, we conclude that the State's reasons for excluding three of the venirepersons who were African-American were pretextual. We therefore must reverse and remand this case for a new trial.

Jury selection began on October 21, 1991. After eight jurors had been chosen, the defense counsel stated that he believed that the State was using its peremptory challenges in a "racially motivated way," in violation of Batson v. Kentucky. Defense counsel further noted that the State made five challenges; four of the jurors that the State had challenged were African-American. The only other challenge exercised by the State was used to excuse defense counsel's aunt. The State responded that it did not believe that the defense had made a prima facie case and asked the court to determine whether it wanted the State to provide reasons for its challenges. The court concluded that the State should provide racially neutral reasons.

After the State explained its reasons for excluding each of the four venirepersons, the court responded that it believed that the use of the peremptory challenge was not based on race but was based on the factors articulated by the State. In this appeal, Smith asserts that the State's explanations were merely pretextual.

Racial discrimination that occurs during jury selection violates the defendant's right to equal protection. (Batson v. Kentucky (1986), 476 U.S. 79, 84, 90 L. Ed. 2d 69, 79, 106 S. Ct. 1712, 1716; People v. Hudson (1993), 157 Ill. 2d 401, 425, 626 N.E.2d 161, 193 Ill. Dec. 128.) Racial discrimination during jury selection also injures the excluded venireperson. (Powers v. Ohio (1991), 499 U.S. 400, 413-14, 113 L. Ed. 2d 411, 427, 111 S. Ct. 1364, 1372 ("A venireperson excluded from jury service because of race suffers a profound personal humiliation heightened by its public character.") Establishing a claim that a prosecutor has violated the equal protection clause during jury selection requires a three-step analysis. (Batson v. Kentucky, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct. at 1723-24.) First, the defendant must establish a prima facie case by showing relevant circumstances which raise a reasonable inference that the State used peremptory challenges to exclude venirepersons because of their race. (People v. Thornton (1993), 256 Ill. App. 3d 708, 711, 628 N.E.2d 1063, 1065-66, 195 Ill. Dec. 599.) In this appeal, the State has not challenged the court's finding that the defendant established a prima facie case and we therefore do not address this prong of the Batson analysis.

Second, if the defendant has made out a prima facie case, the State must then provide race-neutral reasons for excluding the jurors in question. (People v. Lee (1st Dist. September 30, 1994), 266 Ill. App. 3d 994, 641 N.E.2d 617.) "A neutral explanation is an explanation based on something other than the race of the venireperson." (Lee, slip op. at 6.) In articulating its reasons for excluding a particular juror, the State must "give a 'clear and reasonably specific' explanation of [its] 'legitimate reasons'" for exercising its peremptory challenges. (Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88-89 n.20, 106 S. Ct. at 1724 n.20, quoting Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 258, 67 L. Ed. 2d 207, 218, 101 S. Ct. 1089, 1096.) When providing race-neutral explanations, then, it is not sufficient if the prosecutor simply asserts that he or she acted in good faith or without discriminatory motive. People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138, 1142, 157 Ill. Dec. 674.

Finally, the court must then determine if the defendant has made out a case of discrimination. As Kindelan notes:

"[Once the State has offered its explanations,] it is then incumbent upon the trial court to make a sincere and reasoned attempt to evaluate the State's explanations. (Citation.) In [determining if the defendant has established a case of discrimination], the court must assess the genuineness of the State's assertions and determine whether those assertions are legitimate and race-neutral. (Citation.) Further, the trial court must be cognizant that the use of peremptory challenges by a prosecutor in a criminal case must of necessity be subjectively neutral. Any other Conclusion would render peremptory challenges meaningless." Kindelan, 213 Ill. App. 3d at 555, 572 N.E.2d at 1142.

"The trial court's determination on the issue of discrimination is a finding of fact which in a large part turns on an evaluation of credibility and, therefore, is entitled to great deference." (People v. Banks (1993), 241 Ill. App. 3d 966, 971, 609 N.E.2d 864, 868, 182 Ill. Dec. 330.) Thus, when evaluating a Batson claim, the standard to be employed by a reviewing court is to determine if the trial court's decision was "clearly erroneous." Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395; 111 S. Ct. 1859; People v. Williams (1994), 200 Ill. Dec. 355, 263 Ill. App. 3d 649, 650, 635 N.E.2d 694, 696.

Having established the standards to be employed in this analysis, we now review the reasons that the State has articulated for excusing each of these venirepersons.


First, the State exercised a peremptory challenge to excuse Cloute Taylor. During voir dire, Taylor stated that she was married and had owned her own home for 18 years. She also stated that she was employed by the Postal Service.

When asked during the Batson challenge why it had excused Taylor, the State responded as follows:

"[FIRST ASSISTANT STATE'S ATTORNEY]: Postal employee. In Branch 46, we have had numerous people on both sides of the -- that's complainants and victims and defendants, and in cases occurring from the Post Office System.

I don't think she would make a good juror because of her working at the Post Office or seems to be loads of people at Branch 46, that are defendants and victims and in here, too [sic].

THE COURT: What is branch 46?

[1st ASA]: The jury call for misdemeanors.

[2nd ASA]: Jury call.

THE COURT: Give me that again.

[2nd ASA]: Judge, it is not racially biased, it is based on her employment as a -- you could construe it [as] a personal prejudice against postal service, but it is nothing to do with the race.

THE COURT: Why, what is wrong with a postal service employee?

[1st ASA]: They seem to be having all kind of problems in the Criminal Justice System. They come in as complainants, as victims assaulting other postal workers. Had one or two jury trials over there involving postal workers. They just seem -- in fact, Judge, it seems like we get a lot of numerous people [sic] coming into the Criminal Justice System that are postal employees. In fact, one of the last trials we had, everybody involved was in the postal system. In the home invasion, the defendant was the postal employee, the victim was a former postal employee.

[2nd ASA]: The butt naked one.

[1st ASA]: Right, your Honor, which I believe counsel, my partner is trying to say, because they are so prone to be in the Criminal Justice System and are -- they cannot be fair and impartial jurors."

Therefore, the only reason the State articulated for excluding this juror was that she was a postal employee. The court accepted this explanation of the State's reason for using the peremptory challenge, saying:

"Well, the officer of the Court, and they [sic] -- as the State's telling me, that's the reason for their exclusion or their use of the peremptory challenge. I'm going to accept that and deny your request * * *."

We cannot agree with the trial court's Conclusion.

It has recently been noted that "mere employment as a postal employee is not a sufficiently race-neutral explanation for excluding a venireperson." (People v. Sims (1993), 249 Ill. App. 3d 246, 250, 618 N.E.2d 1083, 1087, 188 Ill. Dec. 513.) Sims therefore concluded that, when the State challenged venirepersons because they were postal employees, it failed to present legitimate race-neutral explanations for its use of peremptory challenges. (Sims, 249 Ill. App. 3d at 251, 618 N.E.2d at 1088.) However, Sims reached this Conclusion while analyzing this matter under the manifest weight of the evidence standard. As we have noted, the correct standard under which to analyze this issue is the clearly erroneous standard. Nonetheless, on these facts, we agree with Sims that it was improper to exclude this postal worker from jury service.

The State's attempt to explain why it dismissed this venireperson amounted to nothing more than speculation about the attitudes of postal workers. The trial court asked no questions about Taylor's previous experiences with the Criminal Justice System. The State made no attempt to discover through further questioning whether this juror had any ill feelings toward the Criminal Justice System or whether she had even been involved with the Criminal Justice System. The State also did not determine how this postal worker's possible involvement with the Criminal Justice System affected her attitudes toward the defendant.

Moreover, this explanation is particularly suspect when it is noted that the State accepted as a juror a retired postal worker, an individual who had been employed by the Postal System for 29 years.

Although the parties have not preserved in the record the racial identity of each of the accepted venirepersons, we are willing to infer, because of the comments made by the parties during the Batson hearing, that the retired postal worker accepted by the State was white. While not per se pretextual, inconsistent acceptance of white jurors and African-American jurors should be given weight by the trial court. People v. Andrews (1993), 155 Ill. 2d 286, 295, 614 N.E.2d 1184, 1189, 185 Ill. Dec. 499.

The trial court in this case only conducted a limited inquiry into the legitimacy of the State's reasons. The record further demonstrates that the fact that a retired postal worker was accepted while Taylor was not was not given any weight by the trial court. The court instead concluded that, because the assistant State's Attorneys were "officers of the Court," he would accept their reasons. We find that the trial court did not conduct a meaningful review of the State's reasons in this case, as is required by Batson.

We therefore conclude that the use of a peremptory challenge to exclude this venireperson violated the defendant's equal protection rights. Although we are aware that the exclusion of even one venireperson on the basis of race is unconstitutional (People v. McDonald (1988), 125 Ill. 2d 182, 200, 530 N.E.2d 1351, 1359, 125 Ill. Dec. 781; People v. Cannon (1992), 227 Ill. App. 3d 551, 592 N.E.2d 168, 171, 169 Ill. Dec. 681), we will also address the remaining venirepersons who the defendant alleges were improperly excluded from jury service.


The State also excused Natalie Crowe. Crowe stated that she was separated from her husband, who was a retired police officer with the Chicago police department. She also informed the court that he had never talked about his cases and that his employment as a police officer would not prevent her from being a fair and impartial juror.

The State informed the court that it had excused Crowe because she was separated from her husband who was a police officer and the State was afraid that Crowe might have a bias against police officers. The court accepted this reason. We disagree and conclude that this did not amount to a race-neutral reason.

The fact that Crowe was separated from a police officer says nothing concerning her feelings about police officers. The State argues that, because Crowe was separated, she might harbor negative feelings about police officers. Yet, her possible biases were not explored by the State. As we have previously noted, the State has an obligation to provide "clear and reasonably specific" explanations for excluding prospective jurors. With respect to this venireperson, the State did not meet its obligation. Consequently, we must conclude that the State's decision to excuse Crowe violated the defendant's equal protection rights. As further support for this Conclusion, we refer to People v. Cannon (1992), 227 Ill. App. 3d 551, 592 N.E.2d 168, 169 Ill. Dec. 681, where the court held that the mere fact that a venireperson's son was a minister was not a sufficient reason to exclude that venireperson from a jury, where the prosecutor made no attempt to explore the prospective juror's beliefs.


The defendant contends that the State's reasons for excluding Clarence Silas and Nancy Carter were not race-neutral. Because some of the reasons articulated for excusing these two prospective jurors overlap, we will address them together.

Clarence Silas was 39 years old, married and had rented the same dwelling for 18 years. He was not currently employed but he had worked at FMC Beverage Equipment for 13 years, until 1984. Silas also stated that his wife had been unemployed for two years.

The State also excluded Nancy Carter. Carter was married and she and her husband had been renting in Chicago for four years. Her husband was employed as a janitor and the couple lived rent-free in exchange for his services. Carter also stated that she was unemployed.

When the court asked the State to explain its reasons for excluding Silas, the State responded that Silas was excluded because of his and his wife's lengthy unemployment. The State explained that it had excused Carter because she was unemployed, from out-of-state and because her husband was a janitor working for a real estate company. Because the victim in this matter was a landlord, the State articulated that it was concerned that the couple may have had problems with the landlord and Carter would have a prejudice against the victim. The court concluded that the State's reasons for excluding these jurors were race-neutral.

Therefore, both of these jurors were excused because they were unemployed. Unemployment has been recognized as a legitimate, race-neutral reason for excluding a venireperson from jury service. People v. Mack (1989), 128 Ill. 2d 231, 241, 538 N.E.2d 1107, 1112, 131 Ill. Dec. 551.

The defense argues, however, that Silas and Carter's exclusion was particularly suspect because the State also accepted another unemployed venireperson as a juror. The State accepted Mary Brezak, who stated that she had not been employed in two years. Brezak also stated that her husband was employed as a steel buyer. The couple had one child who was a year old.

Once again, we are willing to infer from the comments of the parties that Brezak was a white juror. We recognize that "if the State excludes a minority venireperson for a certain reason, yet accepts a white venireperson who has the same characteristic, the exclusion is not per se pretextual (citation), but the inconsistency should be given weight by the trial court." (People v. Kindelan (1991), 213 Ill. App. 3d 548, 559, 572 N.E.2d 1138, 1144, 157 Ill. Dec. 674.) A characteristic which is not favorable in one venireperson, however, may be felt to be outweighed by other characteristics in another venireperson that the State accepts for jury service. People v. Andrews (1993), 155 Ill. 2d 286, 295, 614 N.E.2d 1184, 1190, 185 Ill. Dec. 499.

Clarence Silas, a 39-year old male, was excused because of the "length of his unemployment" and the unemployment of his wife. While Brezak was not employed outside the home, she had only been home for two years with her one-year-old child. Further, Brezak's husband was gainfully employed. Therefore, the differences between the parties may have led the State to exclude Silas and accept Brezak. We conclude that the State's reasons for excluding Silas did not amount to a pretext for racial discrimination.

The situation is different for Carter, however. Like Brezak, Carter was not working outside the home. Like Brezak, Carter's husband was employed. The principal difference shown in the record is that Brezak had a one-year-old child while Carter's children were 22, 21 and 20 years old. These similarities give rise to a suspicion that the State did not provide a race-neutral reason for excluding Carter. The trial court had a responsibility to "assess the genuineness" of the State's explanations. A review of the record shows that the trial court did not meet this obligation.

Carter's unemployment was not the only reason that the State gave for excusing her. The State also expressed that it excluded Carter because she was from out-of-state and because her husband was a janitor.

First, we note that Carter had lived in Chicago for more than four years. This justification provided by the State therefore is also somewhat suspect. More importantly, the State claimed that the fact that Carter's husband was a janitor was the main reason for excluding Carter. The State believed that, because the victim was a landlord, Carter might have a prejudice against him. Despite this concern of the State, the State never questioned Carter about her feelings regarding landlords or requested the court to question Carter further. Instead, once again, the reason which the State provided is based on mere supposition. Considering the reasons articulated by the State together, then, and the trial court's failure to assess the legitimacy of the reasons articulated by the State, we conclude that the State's decision to exclude Carter violated the defendant's equal protection rights.

There is only one more argument that we feel it is necessary for us to address. The defendant argues that the challenge of Silas was improper because the court "fed" the State information about Silas. The cases that the defendant cites, however, do not support his argument. For example, the defendant calls our attention to People v. Mays (1993), 254 Ill. App. 3d 752, 626 N.E.2d 1154, 193 Ill. Dec. 603. Mays holds that it is impermissible for a court to infer the State's reasons for excluding a juror. (Mays, 254 Ill. App. 3d at 761, 626 N.E.2d at 1161.) Mays is distinguishable, however, for, in this case, the court did not infer any reasons for excluding Silas.

Because we conclude that the State violated Batson, we remand this case for a new trial. For that reason, we decline to address the further issues raised by the defendant concerning errors at trial or the error of dismissing the post-conviction petition.

JOHNSON, J., concurs. HOFFMAN, P.J., specially concurs.

PRESIDING JUSTICE HOFFMAN, specially Concurring:

While I agree with the result reached in this case, I write separately to register my disagreement with the analysis employed by the majority.

In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court established a three-step process for resolving claims that a prosecutor in a criminal case has violated a defendant's equal protection rights by engaging in racial discrimination in jury selection. (Batson, 476 U.S. at 96-98.) I agree with the majority that the focus of this appeal is upon the second and third steps of that process: the racial neutrality of the reasons given by the State for the exercise of the challenges in issue and the trial court's evaluation of those explanations.

Once a prima facie showing of discrimination has been made, "the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." (Batson, 476 U.S. at 97.) A neutral explanation in this context is one "based on something other than the race of the juror." (Hernandez v. New York (1991), 500 U.S. 352, 360, 114 L. Ed. 2d 395, 111 S. Ct. 1859.) While the prosecutor must articulate a neutral explanation related to the case to be tried, the "explanation need not rise to the level justifying exercise of a challenge for cause." (Batson, 476 U.S. at 97.) "At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation [and] unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." (Hernandez, 111 S. Ct. at 360.) Once a race-neutral basis for exercising a peremptory challenge has been offered by the prosecutor, the trial court must determine if the defendant has established purposeful discrimination notwithstanding the asserted race-neutral explanation. (Batson, 476 U.S. at 98.) In making that determination, the trial court must evaluate the State's explanation in light of all of the surrounding circumstances and resolve the question as it would any other disputed issue of fact. Since the trial court's determination is a finding of fact which turns largely on questions of credibility, its ruling is entitled to great deference (Batson, 476 U.S. at 98 n.21), and will not be reversed on appeal unless it is clearly erroneous (Hernandez, 500 U.S. at 369).

The majority concludes that the State's reasons for excluding Natalie Crowe and Nancy Carter were not race-neutral. I believe that the majority has misconstrued the State's requirement to give "clear and reasonably specific" explanations for exercising peremptory challenges and has confused the question of whether an explanation is race-neutral with the issue of whether it is legitimate or pretextual. (Batson, 476 U.S. at 98 n.20.) In Batson, the court stated that a prosecutor "must articulate a neutral explanation related to the particular case to be tried." (Batson, 476 U.S. at 98.) The Batson court cited to the decision in McCray v. Abrams (2nd Cir. 1984), 750 F.2d 1113, vacated and remanded (1986), 478 U.S. 1001, 92 L. Ed. 2d 705, 106 S. Ct. 3289, and its own opinion in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089, for the proposition that a prosecutor must give "clear and reasonably specific explanations of his legitimate reasons for exercising the challenges." (Batson, 476 U.S. at 98 n.20.) A reading of Burdine, McCray, and Batson reveal that, in context, clear and reasonably specific explanations are those which articulate a reason as opposed to naked affirmances of good faith and non-discriminatory motive and legitimate reasons are those which are not pretextual. In this case, the prosecutor stated that he exercised a peremptory challenge against Ms. Crowe because she was separated from her husband, a retired Chicago police officer, and he feared that she would be biased against police officers. As to Ms. Carter, the prosecutor explained that he feared that she might be biased against the victim, a landlord, because her husband was a janitor. Both explanations are clear, specific, and facially race-neutral. I am at a loss to find a discriminatory intent inherent in either explanation.

Once the State offered its facially race-neutral explanations, it then became the duty of the trial Judge to determine whether the explanations offered were legitimate or pretextual taking into consideration the circumstances of the case. (Hernandez, 500 U.S. at 363; People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, 135 Ill. Dec. 861.) I find nothing in the record that would support the notion that the explanations offered for excusing Ms. Crowe and Ms. Carter would have a disproportionate impact upon prospective minority jurors (see Hernandez, 500 U.S. at 363), or that the prosecutor accepted any white jurors that shared the same or similar characteristics (see Garrett v. Morris (8th Cir. 1987), 815 F.2d 509). The majority seems to say that the State had some obligation to explore the jurors possible biases and base its challenge on something more than speculation. I find no such requirement in Batson, Hernandez, or any other case decided by either the United States or Illinois Supreme Courts. Batson and Hernandez both reaffirm the proposition that the reasons given by the State for exercising a peremptory challenge need not rise to the level of a challenge for cause (Hernandez, 500 U.S. at 362-63; Batson, 476 U.S. at 97), and the explanation offered need not find support in fact (see Harris, 129 Ill. 2d at 176-78 (juror excused because the prosecutor believed that Hyde Park residents were too scholarly, open to new ideas, and less likely to base their findings of fact on the evidence in the case)). In United States v. Briscoe (7th Cir. 1990), 896 F.2d 1476, the court found the prosecutor's explanation that he had exercised a peremptory challenge based upon a belief that a prospective juror's former employment at a correctional center might make her sympathetic toward defendants was valid despite the juror's statements that her experiences would not prejudice her and that she could be fair. As to the State's peremptory challenges of Ms. Crowe and Ms. Carter, I find nothing in this record that would support the majority's implicit Conclusion that the trial court's finding of a lack of discriminatory intent was clearly erroneous.

As to the State's exclusion of Cloute Taylor, based solely upon her employment as a postal worker, I disagree with the majority's Conclusion that the prosecutor failed to give a race-neutral explanation. I also disagree with the holding in People v. Sims (1993), 249 Ill. App. 3d 246, 618 N.E.2d 1083, 188 Ill. Dec. 513, upon which the majority relies for the proposition that mere employment as a postal worker is not a sufficiently race-neutral explanation for excluding a prospective juror. My disagreement with both the majority and the holding in Sims stems from my belief that a juror's employment is in fact a race-neutral explanation (see People v. Hope (1990), 137 Ill. 2d 430, 471, 560 N.E.2d 849, 148 Ill. Dec. 252, vacated on other grounds and remanded (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792; Harris, 129 Ill. 2d at 178-80.) However, to say that an explanation is race-neutral is not to say that it is legitimate and not pretextual.

The only reason given by the State for excluding Ms. Taylor was her employment as a postal worker; yet the State accepted a juror who retired after 29 years of employment with the Postal Service. When the State accepts a white juror having the same characteristic as a minority venire member who was excused on the basis of that characteristic, an inference of purposeful racial discrimination is raised. (People v. Andrews (1993), 155 Ill. 2d 286, 614 N.E.2d 1184, 185 Ill. Dec. 499.) I find nothing in this record that would overcome that inference in excluding Ms. Taylor. Hence, I find the trial court's acceptance of the State's reason for excluding Ms. Taylor to be clearly erroneous.

Since the exclusion of a single prospective juror on the basis of race is unconstitutional and requires reversal of the defendant's conviction (Harris, 129 Ill. 2d at 175), I concur in the result reached by the majority in this case.


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