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05/30/95 PEOPLE STATE ILLINOIS v. KENNETH

May 30, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH WASHINGTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Themis Karnezis, Judge Presiding.

As Corrected June 6, 1995.

The Honorable Justice Hartman delivered the opinion of the court: Scariano, P.j., and McCORMICK, J., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendant, Kenneth Washington, appeals from a conviction by a jury finding him guilty of aggravated arson and, on a felony murder theory, first degree murder. Defendant appeals, presenting issues of whether the circuit court erred in (1) ruling that the State did not improperly use its peremptory challenges to exclude two jurors on the basis of their race; and (2) imposing sentences on the felony murder count as well as the aggravated arson count.

On February 6, 1991, defendant was charged with three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1)-(3) (now 720 ILCS 5/9-1(a)(1)-(3) (West 1992)) and one count of aggravated arson. Prior to trial, the State dismissed two first degree murder counts and proceeded under the felony murder count (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(3) (now 720 ILCS 5/9-1(a)(3) (West 1992)) and the aggravated arson count.

The following trial evidence was adduced. In the early morning hours of January 2, 1991, Chicago firefighters responded to a report of a fire at an apartment building located at 907 West Argyle Avenue, where they found the victim and assisted him out of the building. The victim eventually died of thermal burns and inhalation injuries.

The investigation revealed that the fire had been caused by arson. A witness testified that defendant told her he would kill a man named Mike by "burning him up." She also saw defendant remove the door knobs from the fire escape exits on January 1, 1991. Defendant's signed written statement, read to the jury, indicates that defendant started the fire and, after realizing that he made a mistake, unsuccessfully tried to put it out.

At the close of the evidence, the jury found defendant guilty offirst degree murder and aggravated arson. Defendant was sentenced to 40 years' imprisonment for first degree murder and to a concurrent term of 20 years for aggravated arson. Defendant timely filed a notice of appeal.

I.

Defendant first contends that the State violated his constitutional rights by using its peremptory challenges to exclude the only two African-American female jurors on the venire. He also asserts that the State's explanation for its use of peremptory challenges was pretextual and failed to meet its burden of showing that the excluded venirepersons exhibited a specific bias to the case.

During voir dire, the circuit judge informed counsel that they were allowed seven peremptory challenges. The State accepted the initial panel of 12 jurors and tendered it to the defense. Defense counsel used its peremptory challenges to strike seven venirepersons, four women and three men. The State then used three peremptory challenges to strike three women.

Defense counsel objected to the State's peremptory dismissal of Pauline Merritt and Joan Bogguess because they were the only two African-American women on the panel. The circuit judge asked the assistant State's Attorney for an explanation. The prosecutor explained that Merritt had two children, one of whom was of the "approximate age span" of defendant. Bogguess, the State explained, had male children "close ...


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