The Honorable Justice Nickels delivered the opinion of the court: Justice Miller, dissenting: Chief Justice Bilandic and Justice Heiple join in this dissent.
The opinion of the court was delivered by: Nickels
JUSTICE NICKELS delivered the opinion of the court:
After a jury trial in the circuit court of Will County, defendant, Michael Blackwell, was convicted of three counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(2)), one count of aggravated battery with a firearm (Ill. Rev. Stat. 1989, ch. 38, par. 12-4.2), and one count of reckless conduct (Ill. Rev. Stat. 1989, ch. 38, par. 12-5). Defendant waived his right to be sentenced by a jury. Accordingly, the trial court determined whether defendant was eligible for the death penalty and found that he was eligible under section 9-1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(3)). After considering factors in aggravation and in mitigation, the trial court sentenced defendant to death. Defendant's death sentence was stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); Ill. Rev. Stat. 1989, ch. 38, par. 9-1(i); 134 Ill. 2d R. 603).
In his initial brief to this court, defendant raised the following issues on appeal: (1) whether the State used its peremptory challenges to discriminate on the basis of race in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; (2) whether the evidence supported convictions for second degree murder rather than first degree murder; (3) whether the trial court should have allowed defendant to present final closing argument regarding the issue of second degree murder; (5) whether the State failed to disclose threats made against two witnesses until after trial in violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; (6) whether the death penalty was excessive; (7) whether the trial court erred in permitting the State to make a rebuttal argument at the death penalty hearing; and (8) whether the death penalty statute is unconstitutional. After we heard oral argument in this case, the Supreme Court announced its opinion in J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. , 128 L. Ed. 2d 89, 114 S. Ct. 1419, prohibiting gender discrimination during jury selection. Defendant then filed a supplemental brief raising the issue of gender discrimination, and the State responded.
Because we find that defendant is entitled to new proceedings pursuant to J.E.B., we remand this cause to the circuit court for a Batson -type hearing regarding gender discrimination. We retain jurisdiction of this case. In this opinion, we discuss only those facts pertinent to the issue of gender discrimination and the rights of the parties under the intervening J.E.B. decision. We reserve ruling on any remaining issues.
During jury selection, the State used 4 of 17 peremptory challenges to remove all four black individuals remaining on the venire after one was stricken for cause. The four individuals challenged by the State were women. Ultimately, the State used 15 of 17 peremptory challenges to remove women from the venire. After voir dire, the jury consisted of five women and seven men.
After jury selection, defendant moved to dismiss the jury venire, pursuant to Batson. In Batson, the Supreme Court held that a prosecutor may not use peremptory challenges to exclude potential jurors from the jury on the basis of race. The Court found that such discrimination violates the equal protection clause and is therefore unconstitutional. The trial court accordingly conducted a Batson hearing. At the hearing, the prosecutor discussed his general strategy during voir dire:
"Another thing that I would point out is as a matter of trial strategy. I deliberately did not ask the court to ask the jurors any questions about their feelings towards firearms, nor did I ask the court to ask them any questions about their feelings towards gangs. I think that to do that unnecessarily highlights those two things, puts it in their mind that they ought to be concerned about gangs and guns. And I deliberately didn't do that because I think I have a pretty good idea at this time having prosecuted cases in this county for 12 years and having lived here all my life, which areas are subject to gang infestation and which aren't.
I would also like to point to the court that my counting of peremptory shows that the prosecution exercised two peremptories as to males and 15 as to females.
The prosecution, according to my count, exercised two peremptory challenges as to males and 15 as to females. Conversely, the defense exercised eight as to females and 12 as to males.
Another concern that myself and Mr. Tomczak had coming into this case was the concern about the sympathy factor when the jurors are confronted with the testimony of the defendant's mother. I would again point out to the court that based on my experience in trying jury cases, even in cases where I felt I had a lock solid case, I've seen juries stay out for hours and hours having felt sympathy for one or both parents of the defendant when they testified. That kind of thing happens and it's something to take into consideration."
Later in the Batson hearing, when discussing reasons for dismissing one of the prospective jurors, the prosecutor stated: "And again, I pointed out to the court I felt that I had to consider in my jury selection anyone that might feel sympathetic towards the defendant's mother." After the hearing, the trial judge concluded that the State had not discriminated on the basis of race.
After the jury reached its verdicts and after the parties submitted briefs and oral argument to this court, the Supreme Court announced its decision in J.E.B. In J.E.B., the State of Alabama brought a paternity and child support suit in State court against the purported father. In that case, the State used 9 of 10 peremptory challenges to remove male venire members. The jury that was empaneled consisted solely of women. The ...