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12/22/94 PEOPLE STATE ILLINOIS v. JAMES HARRIS

December 22, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JAMES HARRIS, APPELLANT.



The Honorable Justice Miller delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, James Harris, was convicted of one count each of murder, attempted murder, and aggravated battery and of two counts of attempted armed robbery. The defendant received the death penalty for the murder conviction and sentences of imprisonment for the remaining felonies. In the defendant's prior appeal, this court vacated the death sentence on grounds of evidentiary error. In addition, the court determined that further proceedings were necessary for resolution of the defendant's allegations regarding the State's exclusion of minority members from his jury. ( People v. Harris (1989), 129 Ill. 2d 123, 135 Ill. Dec. 861, 544 N.E.2d 357 (Harris I).) On remand, the circuit court found no infirmity in the manner in which the defendant's trial jury had been selected and, after a new sentencing hearing, reimposed the death penalty for the defendant's murder conviction. The sentence of death has been stayed pending direct review by this court. (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).) For the reasons that follow, we now affirm the judgment of the circuit court.

The evidence presented at trial is set forth in detail in our original opinion in this case (see Harris, 129 Ill. 2d at 137-42) and will be summarized briefly here. The State's principal witness at trial was Theresa Woods, who worked as a waitress at a tavern owned by the murder victim, Jesse James, Sr. In her testimony, Woods stated that she and James closed the tavern around 2 a.m. on February 10, 1983. They left the premises together sometime between 3:30 and 4 o'clock that morning. Outside the building, a man, whom Woods later identified as the defendant, approached them and asked whether the buses were running at that hour. Woods replied that she did not know, and she and James then proceeded to cross the street to their cars. A short time later, as Woods and James stood next to their cars, the defendant approached them again. The defendant grabbed Woods and pointed a gun to her head. Following the defendant's instructions, James then got into the driver's seat of his car, while Woods sat in the back seat; the defendant sat in the front passenger's seat, next to James. The defendant then ordered James to drive a short distance and park in a nearby alley. There, the defendant demanded $300 from James and Woods, threatening to kill the two if they did not comply. The defendant explained that he had "nothing to lose" and did not care if he had to kill the victims, because he was going back to jail anyway.

James told the defendant that he kept some money at the tavern, and they returned to that area. When Woods left the car to get the money, the defendant warned her that he would kill James if she did not return within three minutes. Woods then ran into the tavern and grabbed whatever paper currency she and James had left in the two cash registers earlier that morning.

Woods returned to the car, and the defendant ordered her to get back in the vehicle. James told the defendant that there was no need for Woods to do so, and James and the defendant had an exchange of words. According to Woods, the defendant then grabbed James and shot him. The defendant pushed James out of the car through the driver's door, and the defendant then got out of the vehicle from the same door.

Woods attempted to run away from the car, but she tripped and fell to the ground. The defendant then walked over to where Woods was lying, and swore at her. Woods pleaded with the defendant and raised her hands to protect herself. The defendant shot Woods at close range, hitting her in the shoulder. Woods lay motionless, and she later heard the sound of footsteps running from the scene. Woods got up, saw that James was still alive, and noticed that the car had crashed into the window of a nearby storefront. Woods then called the police.

Police officers who had been provided with a description of the offender soon arrested the defendant several blocks from the crime scene. James died later that morning. Because Woods was pregnant at the time, the bullet lodged in her shoulder was not removed until after the child was born.

At the conclusion of the trial, the defendant was found guilty of the murder of James, the attempted murder of Woods, the aggravated battery of Woods, and the attempted armed robbery of both Woods and James. The matter then proceeded to a bench sentencing hearing. The judge found the defendant eligible for the death penalty and determined that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The defendant was accordingly sentenced to death.

In the defendant's earlier appeal, this court determined that further proceedings were required for resolution of the Batson issue. The court also found reversible error in the presentation of certain evidence at the sentencing hearing. We vacated the defendant's death sentence, and conditionally vacated his convictions and noncapital sentences subject to reinstatement. On remand, the trial court resolved the Batson issue adversely to the defendant and reinstated his convictions. A new sentencing hearing was then held, before a different judge, who sentenced the defendant to death for the murder conviction.

In the present appeal, the defendant raises several arguments regarding the further Batson proceedings conducted on remand from this court's opinion in Harris I. In addition, the defendant raises a number of challenges to the new sentencing hearing conducted below.

I

The defendant was tried on these charges in April 1984. After the jury was selected and sworn, the defendant moved for a mistrial, contending that the prosecution had violated Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, by using its peremptory challenges to systematically exclude blacks from the jury selected in this case. The trial judge denied the motion, and the defendant was subsequently convicted of murder and sentenced to death. While the defendant's appeal was pending before this court, the United States Supreme Court decided Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. Batson altered the evidentiary showing necessary to sustain a claim of improper jury selection, while Griffith held that the rule announced in Batson was applicable to cases pending on direct review at the time Batson was decided.

On May 1, 1987, this court issued an order instructing the circuit court to conduct further hearings in the present case in compliance with the requirements of Batson. At the conclusion of the ensuing hearing, the trial judge found that the defendant had established a prima facie case of racial discrimination under Batson. The judge also found, however, that the prosecution had presented racially neutral explanations for all the peremptory challenges it had exercised against black members of the venire. The judge submitted his Batson findings to this court, which then considered the merits of the defendant's appeal.

At that time, the court upheld the circuit judge's determination that the defendant had shown a prima facie case of racial discrimination under Batson. The court also concluded that the prosecutor had supplied neutral explanations with regard to the exclusion of 12 of the 15 black venire members excused by the State. A majority of the court believed, however, that the record was not sufficiently clear with regard to the State's reasons for excluding three of the prospective jurors, and the court remanded the cause for further proceedings on the Batson issue, as well as for an unrelated sentencing error. ( Harris, 129 Ill. 2d at 189-90.) Harris I identified the three persons as the 13th, 14th, and 15th jurors; we shall refer to them here by their respective names, Milton Pickett, Essie Taylor, and Betty Simmons.

As a preliminary matter, we note that both sides used all 20 peremptory challenges allotted to them. In Harris I, we found that the State excused 15 blacks from the venire and that two blacks served as jurors. ( Harris, 129 Ill. 2d at 169.) We note also that one black served as an alternate juror. The two black jurors were part of the first panel of jurors selected in this case and were chosen at a time when the State still possessed a number of unused peremptory challenges.

Milton Pickett. Milton Pickett lived in Evanston. He was a forklift operator for Baxter, where he had been employed for 13 years, and he also worked evenings as a barber. Pickett was married to a high school teacher, and he and his wife had one daughter, aged 12. Pickett's apartment had been broken into about four years earlier, and his car had been struck by a hit-and-run driver six months earlier. Pickett's brother-in-law was an Evanston police officer. Also, Pickett identified a friend who was a lawyer. When the trial judge heard the name of the friend, the judge asked Pickett whether the friend was a member of the Evanston city council; Pickett said that he was.

At the original Batson hearing conducted in this case, explanations for the State's challenges to black members of the venire were provided by Daniel Franks, who, as an assistant State's Attorney, had taken part in the jury selection at the defendant's trial. Franks cited three reasons for the removal of Milton Pickett. Franks explained that his primary reason for challenging Pickett was the juror's relationship with the Evanston city council member. Franks said that he felt "left out" during the court's colloquy with Pickett about the friend, and that he did not know what views the political friend espoused. Franks also noted that Pickett's wife was a teacher, and he explained that he rarely accepts jurors who are teachers or who are married to teachers. Finally, Franks observed that Pickett was self-employed as a barber, in addition to his other position, and believed that Pickett would therefore have incurred a loss of income if he had served as a juror in this case.

At the conclusion of the initial Batson hearing, the trial judge found the State's challenge to Pickett to be race neutral. The judge stated that the challenge to Pickett was properly based on Pickett's friendship with the attorney, whom the judge characterized as a criminal defense lawyer.

In Harris I, this court rejected the trial judge's finding with regard to prospective juror Pickett. The court observed that the prosecution had not cited the friend's employment as an attorney as a reason for excluding the juror; the court further noted that there was no showing in the record of the attorney's particular fields of practice. Harris, 129 Ill. 2d at 184-85.

At the subsequent proceeding on remand from Harris I, the trial judge reconsidered the State's explanation for its removal of Pickett and again found it to be race neutral. The judge focused on Pickett's friendship with the Evanston city council member, whom the judge referred to as a "political person," and found that association to be sufficient grounds for a peremptory challenge.

Before this court, the defendant contends that we may not properly consider the prosecutor's lack of knowledge of details regarding a prospective juror as an appropriate reason for challenging the juror. The defendant contends that lack of knowledge will always be an easy pretext to give, and he notes that the State made no attempt during voir dire to learn any information about the city council member or about the friendship between him and Pickett. The defendant further contends that we may not consider here the two other reasons cited by the prosecutor for the removal of Pickett because the trial judge did not refer to them in his ruling on the Batson issue.

We have carefully reviewed the transcript of the voir dire, as well as the transcripts of the original Batson hearing and the hearing on remand from Harris I. We do not believe that the trial judge's ruling with respect to Pickett was clearly erroneous.

Under Batson, once a defendant succeeds in establishing a prima facie case of purposeful discrimination, the burden shifts to the prosecution to articulate a clear and reasonably specific explanation for the exercise of its peremptory challenges to members of the excluded group. ( Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) A neutral explanation sufficient to satisfy this requirement is one based on a reason other than race. ( Hernandez v. New York (1991), 500 U.S. 352, 360, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866.) To be sufficient, however, an explanation for the removal of a juror need not amount to a challenge for cause. ( Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Thus, whether the prosecution acted with discriminatory intent in the exclusion of a prospective juror is a question of fact, turning largely on the credibility of the person supplying the explanation ( Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21), and a trial judge's ruling will not be reversed unless it is clearly erroneous ( Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412, 111 S. Ct. at 1871; People v. Andrews (1993), 155 Ill. 2d 286, 293-94, 185 Ill. Dec. 499, 614 N.E.2d 1184).

Applying these principles to the case at bar, we are satisfied that the trial judge's determination that the State provided a race-neutral explanation for its decision to exercise a peremptory challenge against Milton Pickett is not clearly erroneous. The prosecutor explained that one of his concerns was that he did not have more information about Pickett's friendship with the council member, or about his political views.

Contrary to the defendant's argument, there is no requirement that a court reject a prosecutor's explanation simply because it rests in part on a lack of knowledge. As we have stated, determining whether the State has properly provided a race-neutral explanation for the exclusion of a particular juror will primarily be a question of credibility; although a prosecutor's complaint that he lacks information regarding a juror might warrant extra caution on the part of the trial judge and reviewing court, it is not automatically invalid. Our earlier opinion in this case counseled that an explanation based on a lack of knowledge deserves close scrutiny, yet the court did not suggest that such an explanation may never stand. (See Harris, 129 Ill. 2d at 188.) Although inquiry by the State could have clarified some of the matters left uncertain by the voir dire, we cannot say that the failure of the prosecution to propose additional questions regarding Pickett's friend fatally undermines its proffered explanation for the challenge to this prospective juror. See People v. Kitchen (1994), 159 Ill. 2d 1, 20-21, 201 Ill. Dec. 1, 636 N.E.2d 433.

In the proceedings on remand, the State provided an explanation for its failure to attempt to learn more information about the prospective jurors during voir dire. Although this explanation was given by a person who had not participated in the selection of the jury in this case, we do not agree with the defendant that we are foreclosed for that reason from considering it. The successor prosecutor explained that asking jurors further questions can threaten to taint the entire venire through the disclosure of sensitive information and can unnecessarily lengthen an already long process. We find these concerns to be legitimate.

Further support for the State's decision to exercise a peremptory challenge against Pickett is found in the two additional explanations provided by the prosecution at the original Batson hearing. As we have noted, the prosecutor said that he also based the challenge on Pickett's wife's employment as a school teacher and on Pickett's own part-time work as a self-employed barber. The prosecutor explained that he customarily challenged teachers and spouses of teachers, and ...


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