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08/11/95 PEOPLE STATE ILLINOIS v. LIVELL FIGGS

August 11, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LIVELL FIGGS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable James P. Flannery, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

A grand jury indicted the defendant, Livell Figgs, and his co-defendant, Jesse Hamilton, for first degree murder for the August 5, 1990, fatal shooting of Carlos Palton. The defendant filed a motion for severance, and he and Hamilton were tried simultaneously before two separate juries. The defendant's jury found him guilty, and the judge sentenced the defendant to 40 years' imprisonment. The defendant contends that the State denied him a fair trial by discriminating in its use of peremptory challenges to potential jurors, by asking improper questions of a witness and by engaging in inappropriate closing argument.

The State based its case primarily on the testimony of a witness to the shooting, Brenda Diane Seals. Seals testified that, in August 1990, she lived around 55th and Marshfield, where she had lived for 23 years. She had known Palton and his family for most of her life. She had known the defendant, also known as Morocco, for four or five years and had known Hamilton, also known as Tojo, for seven or eight years. She had seen the defendant and Hamilton every day selling drugs on the corner of 56th and Ashland.

On August 5, 1990, she left her home a little after 1 a.m. to go to Fatty Pigs restaurant at 55th and Ashland. Palton was at the restaurant with Wesley Dyer and some other friends. After eating at Fatty Pigs, Seals went to a liquor store at 56th and Ashland. Palton followed her. The defendant, Hamilton and some of their "associates," Pete, Donnie and Ray Ray, were talking in front of a lounge two doors from the liquor store.

Seals and two other men, named Turtle and James, bought some wine in the liquor store, and Seals bought some beer for Palton. She, Turtle and James walked to the southwest corner of 56th and Marshfield. As she stood on this corner, she saw Palton and Dyer walking toward her on the south side of the street. The defendant, Hamilton, Pete, Donnie, Ray Ray and someone named Otis were following Palton and Dyer. Near the corner of 56th and Marshfield, they formed a circle around Palton, and Dyer ran from them. The defendant and Hamilton began slapping Palton in the face, and Hamilton accused Palton of selling drugs on their turf.

Hamilton told the defendant to go get "the missile," by which he meant a gun. The defendant ran into a gangway and returned with a gun, which he gave to Hamilton. Hamilton gave the gun back to the defendant and said, "Shoot him." The defendant fired the gun twice at Palton's back and gave the gun to Hamilton, who fired once or twice at Palton.

The defendant, Hamilton and their "associates" ran from the scene. Seals ran to Palton's house nearby and told Palton's mother, Mary Palton, "that her baby had just got shot." She then returned to 56th and Marshfield, but she did not talk to the police because she was scared of the defendant and Hamilton. Later that morning, however, she talked to the police and told them that she had witnessed the shooting. On August 5, 1990, she identified Hamilton as one of Palton's shooters from a photograph the police showed her. She looked through books of photographs for a picture of the defendant but did not find one. On January 16, 1991, however, she identified the defendant in a lineup.

As impeachment, the defendant presented Seals' testimony before the grand jury in this case and her testimony from Figgs' first trial, which had resulted in a hung jury. Although she testified at the second trial that she had not had anything to drink before witnessing the shooting, she testified before the grand jury that she had drunk three sips of wine before the shooting. Also contrary to her testimony at the second trial, she testified at the first trial that, after the defendant ran from the gangway with the gun, he pointed the gun at Palton and fired. During the first trial, she also admitted telling the police that she was sitting in a doorway at 1639 West 56th at the time of the shooting rather than standing on the corner.

Mary Palton was the State's first witness. She explained that her son was 18 years old at the time of the shooting. She testified that Seals had come to her door after 1 a.m. on August 5, but the defendant's counsel objected to the State's questions concerning the contents of her conversation with Seals.

The State also presented the testimony of several police officers and a medical examiner. These officers explained that they arrived at 56th and Marshfield at approximately 1:30 a.m. on August 5, 1990, and found Palton lying on his back at the southeast corner of that intersection. At 1623 West 56th, the police found one spent .9 millimeter cartridge from a semiautomatic gun. Palton was taken to Cook County hospital, where he died later that morning. The medical examiner testified that Palton died from multiple gun shot wounds. One gunshot entered the back of his left thigh and exited through the front. The other entered his lower back and exited through his chest. He also had abrasions to his face, which the medical examiner opined were the result of being struck in the face within the hour before his death.

In September 1990, the police obtained a warrant for the defendant's arrest. In January 1991, they arrested him at his father's home, where they found him hiding in a pile of clothes.

The defendant did not testify, but the defense recalled one of the police officers, Detective James Brennan, to testify in his case. Brennan testified that Seals had told him that the defendant and Hamilton had shot Palton with a semiautomatic gun, but she had not told them that the gun was a .9 millimeter. She had also told them that the defendant had fired one shot and Hamilton had fired three or four shots. In addition, she had told the police that she had been sitting in a doorway at 1639 West 56th at the time of the shooting and stood up as the shooting occurred.

The defendant first contends, under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, that the State violated his right to equal protection under the fourteenth amendment to the United States Constitution by using peremptory challenges to exclude potential jurors solely on the basis of race. In Batson, the Court established a three-step analysis for determining whether the State engaged in this form of purposeful discrimination. Batson, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct. at 1723-24.

To show a Batson violation, the defendant must first establish a prima facie case of discrimination in the State's use of peremptory challenges through relevant circumstances that raise a reasonable inference that the prosecutor used peremptory challenges to exclude potential jurors on the basis of race. ( People v. Hudson (1993), 157 Ill. 2d 401, 626 N.E.2d 161, 193 Ill. Dec. 128.) These relevant circumstances include

"(1) a pattern of strikes against black venirepersons; (2) a disproportionate use of peremptory strikes against black venirepersons; (3) the level of black representation in the venire as compared to the jury; (4) the prosecutor's questions and statements during voir dire and while exercising peremptory challenges; (5) whether the excluded black venirepersons were a heterogeneous group sharing race as their only common characteristic; and (6) the race of the defendant, victim and witnesses." ( Hudson, 157 Ill. 2d at 426.)

A defendant cannot establish a prima facie case based merely on the number of black venirepersons excluded. ( People v. Peeples (1993), 155 Ill. 2d 422, 616 N.E.2d 294, 186 Ill. Dec. 341.) A judge's determination that the defendant did not show a prima facie case of discrimination is a finding of fact, and a reviewing court will not overturn such a finding unless it is against the manifest weight of the evidence. Peeples, 155 Ill. 2d at 469.

After the judge has determined that the defendant has established a prima facie case, the burden of production shifts to the State to present race-neutral explanations for striking a potential juror. ( People v. Mitchell (1992), 152 Ill. 2d 274, 604 N.E.2d 877, 178 Ill. Dec. 354.) "The second step of this process does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.'" Purkett v. Elem (1995), U.S. , 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771, quoting Hernandez v. New York (1991), 500 U.S. 352, 360, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866.

Once the State offers a race-neutral reason for its exclusion of a potential juror, the judge must decide whether the defendant has proved that the State engaged in purposeful discrimination. ( People v. Kitchen (1994), 159 Ill. 2d 1, 636 N.E.2d 433, 201 Ill. Dec. 1.) This is largely a determination of credibility by the trial judge to which reviewing courts must give great deference. ( Kitchen, 159 Ill. 2d at 19.) Trial judges "'are familiar with local conditions and prosecutors, and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one.'" ( People v. Mahaffey (1989), 128 Ill. 2d 388, 415, 539 N.E.2d 1172, 132 Ill. Dec. 366, quoting People v. Evans (1988), 125 Ill. 2d 50, 67, 530 N.E.2d 1360, 125 Ill. Dec. 790.) A reviewing court will not, therefore, overturn a trial judge's finding as to whether the State engaged in purposeful discrimination unless it is clearly erroneous. Kitchen, 159 Ill. 2d at 19.

Before voir dire, the parties submitted questions to the judge. After the judge questioned each of the two panels of jurors, he asked the parties if they had any additional questions for the jurors. Neither party had additional questions.

After the judge questioned both panels of jurors, the State used two of its peremptory challenges to excuse Araina Brown and Anne Williams. The defendant's counsel objected on Batson grounds because both of these jurors were black females. The judge stated that he thought this challenge was premature. He noted that the parties had selected the jury for Hamilton only a few hours earlier, and this jury included three or four black jurors. Nevertheless, the judge found that the defendant had shown a prima facie case of racial discrimination, and he asked the State to provide race-neutral reasons for its challenges. After a hearing in which the State provided explanations for its challenges, the judge found that there had been no Batson violation.

The jury selection then continued. As the judge explained for the record, the next juror was a black female, Angela Underwood, whom the State accepted. Several jurors later, the State challenged another black female juror, Elizabeth Boykin, and then a white female juror, Sister Margaret Martinique. After the State then accepted a black male juror, Homer Walker, it used its fifth challenge to excuse anotherblack female, Nina Bonds. The State used only five of its peremptory challenges.

The defense objected to the challenges against Boykin and Bonds before the judge swore in the jury the next day. The judge decided, however, that the defense had not established a prima facie case of racial discrimination:

"There are apparently two African Americans on the jury. At this time based on the exclusions made by the State the Court finds there is not a prima facie showing of Batson violation at this point.

There was earlier on the first two people who were challenged, the State gave race neutral reasons. At this time the Court finds that there is not a prima facie showing of a Batson violation."

Using the Batson framework, we first address the defendant's claim that the judge erred in finding that the State had not engaged in purposeful discrimination by excluding two black female jurors, Araina Brown and Anne Williams. As soon as the State has presented race-neutral reasons for its challenges, and the judge has ruled on the ultimate question of discrimination, the issue of whether the defendant established a prima facie case becomes moot. ( Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.) We need only determine, therefore, whether the judge's determination that there was no discrimination in the challenges to Brown and Williams was clearly erroneous.

During the Batson hearing, the State explained that it had challenged Araina Brown because she was studying social work and therefore "tended to lean more to the liberal side and tended to sympathize more with the defendant than she would with the victim." The State offered to provide other reasons, but the judge stated that he was satisfied with the reason the State had provided him.

The judge's acceptance of the State's explanation for challenging Brown is supported by several cases in which courts have held that the prosecutor's belief that a potential juror has liberal views because of her involvement in the social work field is a legitimate race-neutral reason for excluding that juror. See, e.g., Mitchell, 152 Ill. 2d at 298-99; People v. Hemphill (1992), 230 Ill. App. 3d 453, 594 N.E.2d 1279, 171 Ill. Dec. 759.

The State asserted several bases for challenging Anne Williams. She had stated during voir dire that she was retired from the Chicago Police Department, but, when the court asked the jurors whether they had any friends who were police officers, she did not raise her hand. Also, although she said she was retired, she did not "look of an age that would be retired." Furthermore, although she did not respond affirmatively to the judge's question whether any of the jurors had been arrested before, the State had a Chicago Police Department "B of I" that indicated "a person around her date of birth was arrested before."

Although the defense counsel objected to the State's use of the arrest record because it was not certain that Anne Williams was the person arrested, the judge stated that he accepted the State's three reasons for excluding her as race-neutral. He stated that the "most logical" reason was that she had worked at the police department but had no police officers as friends, which could indicate that she left the department on poor terms. Again, we think that the judge properly concluded that the State had presented race-neutral reasons for excluding Williams. We need not address whether the B of I was a legitimate basis for exclusion because we conclude that the other reasons the State offered were legitimate race-neutral reasons for excluding her. See Mitchell, 152 Ill. 2d at 302-03 (although the basis for one of the prosecution's explanations was erroneous, the other legitimate explanations for the challenge supported the judge's conclusion that there was no Batson violation).

As the judge stated, the facts that Williams looked too young to be retired and had no friends who were police officers may have suggested that she left the police department on poor terms. Courts have found that a juror's potential bias against police officers is a legitimate race-neutral reason. See People v. Banks (1993), 243 Ill. App. 3d 525, 611 N.E.2d 1270, 183 Ill. Dec. 622; People v. Woods (1989), 184 Ill. App. 3d 688, 540 N.E.2d 1020, 133 Ill. Dec. 154.

After accepting the State's reasons, the judge concluded that the defendant had failed to show a Batson violation at that time. The defendant contends that the judge erred in failing to find discrimination because the State's reasons for excluding Brown and Williams were pretextual.

With respect to Brown, the defendant argues that it was pretextual to exclude her on the basis of a class-based stereotype without examining her to determine whether she actually possessed the stereotypical liberal views of social workers. The defendant makes a similar argument with respect to Williams. He argues that the facts that she did not have friends who were police officers and looked too young to be retired do not necessarily indicate that she left the police ...


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