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December 20, 1994


Appeal from the Circuit Court of Cook County. The Honorable Rosaland M. Crandell, Judge Presiding.

Presiding Justice DiVito delivered the opinion of the court: Scariano and McCormick, JJ., concur.

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

This appeal arises from the dismissal of a post-conviction petition without an evidentiary hearing. Petitioner Ellis Partee raises issues concerning racial discrimination in jury selection, judicial prejudice requiring the substitution of judges, and the appointment of replacement counsel upon the public defender's withdrawal from representation. For reasons that follow, we reverse and remand for an evidentiary hearing.

On June 7, 1984, petitioner was convicted of attempted armed robbery and aggravated battery. Petitioner's convictions were affirmed by this court in 1987, but his sentences were modified to 30 years for attempted armed robbery and five years each for three counts of aggravated battery, the aggravated battery sentences to run consecutively to each other but concurrently with the attempted armed robbery sentence. All of these sentences were to be consecutive to another 30 year sentence imposed for a Du Page County conviction. See People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165, 110 Ill. Dec. 845, appeal denied (1987), 116 Ill. 2d 571, 515 N.E.2d 121, cert. denied (1987), 484 U.S. 1072, 98 L. Ed. 2d 1006, 108 S. Ct. 1043.

Prior to the beginning of voir dire in his trial, which took place before the decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, was handed down by the United States Supreme Court, petitioner (who was acting pro se) had specifically requested that the prosecution be precluded from using its peremptory challenges in a racially discriminatory manner. The court rejected this request, ruling that the State could use its peremptory challenges "in any way they wish to." Subsequently, during the course of voir dire, petitioner objected to the State's allegedly racially discriminatory use of peremptory challenges, stating at one point that the State had used five, all against African Americans. The court at that point again made it clear that it rejected the premise of petitioner's argument, stating that "it's of no significance to this Court whether a person was black or white or blue or green and let that be very clear on the record, Mr. Partee."

Before the questioning of jurors resumed, petitioner requested that he be allowed to make a record so that he could raise on appeal the issue of whether the State was discriminating in the exclusion of African Americans, and specifically asked that the court acknowledge that five black venirepersons had already been excluded by the State. When the State objected, the court sustained the objection, and ruled that it would not state the race of the jurors for the record, because this was "unimportant to this Court." Later during voir dire, petitioner stated that the State, which by that time had used eight peremptory challenges, had used seven of these to exclude African American venirepersons, and requested the court to acknowledge the fact. The State again objected (although it did not dispute the correctness of the statement), and the court again sustained the objection, stating this time that "it is insignificant to this Court." Petitioner protested that he was trying to make a record, but the court persisted in its refusal to take cognizance of the race of the venirepersons.

Shortly thereafter, petitioner stated that the State had excluded all of the potential black jurors up to that point. Later, after a request from petitioner that the record reflect that, as of that point, all of the seated jurors were white, and that the prosecution was practicing racial discrimination in selecting the jury, the court stated, "Mr. Partee, it makes no difference. * * * I will not recognize whether they are white or black or green * * *." Petitioner subsequently alleged that all African American venirepersons save one had been systematically excluded from the jury.

Petitioner had requested in his direct appeal that the cause be remanded for a hearing pursuant to Batson, which had been decided by that time, to determine whether the prosecution had used its peremptory challenges to exclude African Americans from the jury, a practice which violates equal protection of the law and the right to a fair jury trial. ( Partee, 157 Ill. App. 3d at 266-68, 511 N.E.2d at 1188-89.) Although petitioner's jury selection had preceded the decision in Batson, that case was decided while petitioner's direct appeal was pending, and under Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, he was entitled to the benefits of the Batson decision. This court rejected petitioner's claim, on the ground that petitioner had not made a prima facie case of racial discrimination because the record failed to reflect the race of the excluded and accepted venirepersons, because this deficiency was not overcome by petitioner's statements for the record about the race of the excluded venirepersons, and because the fact that a single African American juror may have been seated demonstrated that no Batson violation had taken place. Partee, 157 Ill. App. 3d at 268, 511 N.E.2d at 1189.

On August 13, 1984, petitioner filed a petition for post-conviction relief. The petition was dismissed without an evidentiary hearing on October 28, 1985. In an order issued pursuant to Supreme Court Rule 23 (134 Ill. 2d R.23), however, on July 19, 1988, this court reversed and remanded for further proceedings due to the court's failure to enter the order of summary dismissal within 30 days of the filing of the petition.

On October 27, 1988, the State moved to dismiss the petition. On March 1, 1990, petitioner filed a supplemental petition. On or about March 20, 1991, petitioner filed a motion for the public defender to withdraw and for appointment of private counsel or to proceed pro se. On April 15, 1991, petitioner moved to withdraw his prior petition to have the public defender withdraw, which was granted.

On June 24, 1991, petitioner filed a pro se motion for recusal and a motion for substitution of judges. The public defender filed its own motion for recusal as well. On that date, the presiding judge informed the parties in open court that she had received a letter from petitioner which she had not opened, and then tendered the letter to the assistant public defender assigned to the case. Petitioner then read his letter into the record. In the letter, petitioner stated that he had no confidence in the assistant public defender representing him in the post-conviction proceeding.

Petitioner then asked the court to consider his motion for substitution of judges. The court denied the motion for recusal, declaring, "No, I will not recuse myself." The court determined, however, that another judge should rule on the motion for substitution of judges. The case was continued to July 1, 1991, and was assigned to another judge.

On July 1, 1991, a hearing was convened before the second judge to consider petitioner's motion for substitution of judges and the public defender's office's motion to withdraw, filed that day. The hearing was continued until July 18, 1991. At the hearing, Mary Ellen Schmitt testified that she is a sergeant in the Cook County Sheriff's Department. She had made no record of anything the prosecutor may have said to her about petitioner. When petitioner came out of the Cook County Jail, a security meeting was held where all of the parties were represented. There had also been other security meetings.

When asked if the assistant state's attorney had come to her and said that petitioner was the most dangerous person to come through the Des Plaines court in the last four years, Schmitt stated that he had not. The assistant state's attorney had, however, spoken with a male deputy sheriff. According to Schmitt, she, the assistant state's attorney, assistant public ...

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