APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOHN E. MORRISSEY, JUDGE PRESIDING.
As Corrected June 21, 1995.
Presiding Justice Cousins delivered the opinion of the court: Gordon and T. O'brien, JJ., concur.
The opinion of the court was delivered by: Cousins
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
Following a jury trial, defendant, Shawn Holmes, was convicted of first degree murder. The trial court subsequently sentenced defendant to serve a term of 38 years in the Illinois Department of Corrections. On appeal, defendant contends that: (1) the trial court erred in determining that defendant failed to establish a prima facie case of an impermissible racially based peremptory challenge; and (2) the trial court's sentencing of defendant to serve a term of 38 years was excessive and should be reduced.
We affirm in part and remand in part, with directions.
On January 8, 1991, defendant was charged by indictment with first degree murder for the killing of the victim, Gregory Guest, on December 16, 1990.
During the voir dire of prospective jurors, when the State exercised its first peremptory challenge against prospective juror Mrs. India Nichols, defendant claimed that the peremptory challenge was impermissibly based on the Mrs. Nichols' race and motioned the trial court to require the State to indicate the reason for excluding her. In so doing, defendant maintained that, other than Mrs. Nichols' membership in the NAACP, *fn1 there was no other reasonable explanation for her exclusion. The State, however, responded that it did not have to give any reason for the exclusion because defendant had not sufficiently demonstrated a prima facie case of an impermissible racially based peremptory challenge.
In response to defendant's motion, the trial court noted that up to that point in the jury selection there had been two African-American prospective jurors in the venire. The trial court denied the motion and determined that defendant had not established a prima facie case under Batson and made the following ruling:
"Mrs. India Nichols, she is a lady in her fifties, divorced for four years and she has six children and she listed her occupation as a housewife, parttime [sic ] beautician and goes to persons homes.
She did state that as far as organizations or clubs, she belongs to the N.A.A.C.P. Batson requires a tendering of race neutral reasons if the person challenged is a member of a recognizable minority and obviously Mrs. Nichols is female Afro-American person. ***
I don't think that given the description that I have given thus far, that you have sustained your burden to require the prosecution to state its reasons for the exclusion under Batson versus Kentucky. I will say that the person excluded, although she shares many characteristics in her background with those that are accepted by both sides, excluding race, she is one of the few people who stated that she was divorced and she is the only one who stated that she belongs to that particular organization, N.A.A.C.P."
At the end of jury selection, 12 jurors and 2 alternates were selected by both parties.
At trial, Officer Sam Wilson testified that on December 17, 1990, he and his partner were on patrol in a marked police car. At approximately 1:30 a.m. on that date, he and his partner responded to a call informing them that a man had been shot at the corner of 84th and Parnell Streets. When they arrived on the scene, Officer Wilson observed a brown BMW on an embankment facing east on the corner of 84th and Parnell Streets. The car was still running and was full of bullet holes. He noticed that the driver's passenger side window was shot through. The driver's door was open at the time, and the victim was lying on the ground, bleeding. He checked the victim's body and found that it was still breathing a little. However, when he checked the victim's pulse, he could not feel a pulse and concluded that the individual had expired.
Mr. Thomas Bachelder, an evidence technician for the Chicago police department, testified that, on December 17, 1990, he was working as a member of the mobile crime unit and received an assignment at approximately 2 a.m. directing him to go to the corner of 84th and Parnell Streets. He photographed the scene and searched for firearms evidence. He found seven 9 millimeter cartridge cases, one fired bullet, and eight metal fragments. He testified that casingsfound at the scene were from a 9 millimeter semi-automatic weapon. He also found a .32 revolver under the driver's seat of the BMW. He examined the revolver and did not find any spent casings inside the revolver.
Officer Robert Blackman testified that at approximately 1:30 a.m. on December 17, 1990, he and his partner were on patrol duty in a marked police car. At that time, they were going westbound on 83d Street and were proceeding to take their car to the garage for repairs when they observed a two-door Ford Probe in the eastbound lane run through a stop sign. In response, they turned their patrol car around, activated their emergency equipment, and signaled the driver of the car to stop.
The car, however, ran another stop sign and then made a left turn onto northbound State Street. Officer Blackman and his partner also turned left and proceeded north on State Street. As they were traveling north on State Street, when they arrived at approximately 8219 South State Street, Officer Blackman saw a gun and a white bundle thrown from the passenger window. The vehicle continued north on State Street and eventually came to a halt at approximately 7951 South State Street.
The officers told the four passengers, including defendant, to exit the vehicle. Defendant had been in the back seat on the passenger side. After the officers conducted a pat-down search of the passengers, the officers monitored a radio call of a man shot at 84th and Parnell Streets.
An assist car arrived consisting of Officer Watkins and his partner. Officer Blackman told the officers about what he had seen thrown from the vehicle, gave them the location, and asked them to return to the location to retrieve the items. After going to the location, the assisting officers returned with a gun which they found in the area that Officer Blackman had directed them to. Officer Blackman testified that the gun recovered was a 9 millimeter semi-automatic weapon which is capable of firing between 30 and 34 rounds.
Officer Robert Watkins testified that when he and his partner arrived, Officer Blackman and his partner had four suspects in their vehicle. At the request of Officer Blackman, Officer Watkins then went to the area around 82nd and State Streets in search of a firearm and a white package thrown out of the Ford Probe. At 8219 South State Street, he found an automatic weapon on the ground against the curb. Officer Watkins also observed a large number of clean, white napkins lying on the ground approximately two to three feet from the weapon.
Detective Thomas Krippel testified that he had two conversations with defendant. Later that day, after his second conversation with defendant, Detective Krippel contacted the felony review unit at the Cook County State's Attorney's office. Shortly after 11 a.m., Assistant State's Attorney Michelle McDowell of the felony review unit arrived. After he spoke with her briefly, she went in to speak with defendant and the other individuals in custody.
Dr. Fuksel Konakci, a forensic pathologist working as an assistant medical examiner in the Cook County medical examiner's office, testified that he performed an autopsy on the victim's body. He observed that the victim's body had seven gunshot wounds. Dr. Konakci ...