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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 ...

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