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01/25/96 PEOPLE STATE ILLINOIS v. JAMES MUNSON

January 25, 1996

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



The Honorable Justice Freeman delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, James Munson, was convicted of first degree murder, aggravated kidnapping, armed robbery and arson of property of Marvin Cheeks. (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a), 10-2(a)(5), 18-2(a), 20-1(a).) Following a bifurcated sentencing hearing, the trial court sentenced defendant to death on the first degree murder conviction. Defendant was additionally sentenced to concurrent prison terms of 30 years for armed robbery, 15 years for aggravated kidnapping, and 5 years for arson.

Post-trial motions for a new trial and for a new sentencing hearing were denied. Defendant's appeal lies directly to this court. (See Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).) After careful consideration, we now affirm defendant's convictions and sentences.

BACKGROUND

The following evidence was adduced at trial. Paramedic Kerry Pakucko testified that on the morning of October 5, 1991, at about 4 a.m., she and her partner, John Florone, were returning to the firehouse when they noticed smoke northwest of their location. As they headed toward the smoke, they came upon a car totally engulfed in fire. The area was very isolated, lonely and desolate. Because the streets in the area had no signage, it was difficult for the paramedics to identify their location. While attempting to do so, they noticed the body of a man lying face down in some water under a viaduct.

There was a bullet hole in the man's back and coagulated blood by his mouth. The paramedics determined that the man was dead. Pakucko eventually hailed a passing police squad car while Florone called to have a fire engine dispatched to the scene.

Police Officer Wade Spencer testified that he was "flagged down" by paramedics on Kostner Avenue near Van Buren Street. After speaking with the paramedics, Spencer and his partner, Larry Stubbs, proceeded west on Van Buren where they discovered a body lying in the street. There was a bullet hole in the victim's lower back area and one in his head. The officers found no identification on the victim.

Further down the street, about 200 feet to the west of the body on the other side of the viaduct, the officers observed a vehicle engulfed in flames. The license plate on the vehicle was burned. The communication operations section of the police department later identified the vehicle as being registered to Marvin Cheeks.

Detective Clifford Pilgrim, a certified fire investigator, testified that he investigated the origin of the fire which burned Cheeks' vehicle. Based upon his investigation, the fire had been started with an accelerant. Pilgrim concluded that the cause of the fire was arson.

Officer Lawrence Krause, a crime scene technician, testified that he recovered a copper bullet jacket from the floor of the interior of the burned vehicle on the passenger's side. Outside, in the area around the vehicle, Krause found a small "Bic" cigarette lighter and a burned plastic beverage bottle with a partially burned rag wick inserted in its neck.

Kenny Curry testified as follows. On October 6, 1991, the day after the murder, he was working on his car at the home of his friend, Kenny Burks. Defendant came over to Burks' home and began conversing with Burks. Burks went into the house to clean up, leaving defendant and Curry alone outside.

Curry noticed that defendant's face had burn marks and was covered with grease. Defendant told Curry that his "thing [was] taking [people] out of their cars." Defendant elaborated, telling Curry that on the prior evening he set fire to an Amigo truck because "the guy tried [him.]" He shot the man once and then shot him a second time after the man "broke and ran" away from him. Defendant then purchased some gasoline and returned to the area to burn the victim's truck. In the process of burning the truck, defendant's face was burned.

Curry further testified that he later learned that defendant's victim was Marvin Cheeks, the brother of Maurice Cheeks, a professional basketball player. Although Curry did not know Marvin Cheeks, he and a friend attended the funeral in anticipation of Maurice Cheeks' presence there. Curry did not, however, report to the police what defendant had told him about the killing.

Detectives Mike Miller and James Hanrahan were assigned to investigate the Cheeks murder. Hanrahan testified that on October 8, 1991, he received a telephone call from a member of the Cheeks family. He and Miller subsequently met with the Cheeks family member, Kenneth Burks and Ricky Vivurette. After speaking with those individuals, Hanrahan and Miller made arrangements to conduct a mobile surveillance of Burks' car.

Miller and Hanrahan followed Burks, with whom Vivurette was riding, for a period of time. Burks eventually parked on West Monroe Street. A person, later identified as defendant, approached Burks' car and began to talk to Burks. After a brief conversation, defendant turned and ran into the building at 2020 West Monroe Street and Burks drove off.

Hanrahan and Miller stopped Burks, at which time Burks explained that defendant had seen the detectives parked nearby and believed them to be vice detectives. Defendant told Burks to drive away and to come back.

The surveillance continued. Burks drove off, returned to 2020 West Monroe Street and parked. The detectives observed as defendant ran out of the 2020 West Monroe Street building and entered the rear of Burks' car. Burks then drove off with both defendant and Vivurette.

The detectives followed, eventually stopping Burks' car at North Leavitt Street. Hanrahan first ordered Burks and Vivurette out of the car and then defendant. While Hanrahan searched defendant, Miller searched the back seat of the car, where he found a weapon. At that time, Hanrahan handcuffed defendant and advised him of his Miranda warnings. Miller drove the vehicle to a police garage and Hanrahan transported defendant to Area 4 Violent Crimes.

Once at the Area 4 station, Hanrahan placed defendant in an interrogation room. In the interim, he interviewed Burks, Vivurette and Curry. At about 2 a.m., Hanrahan and Miller entered the interrogation room to speak with defendant. Miller advised defendant of his rights and informed him that he had been picked up as part of their investigation of the death of Marvin Cheeks.

Defendant denied knowing Marvin Cheeks and denied any knowledge of the crimes committed against Cheeks. Defendant claimed that his face was burned when someone, attempting to rob him, pointed an aerosol can at his face and ignited it. Defendant continued in his denial until the detectives brought Burks into the interrogation room. After Burks detailed what he knew and had already told police about the crimes, defendant agreed to tell the detectives what had happened.

According to Hanrahan, defendant told the interrogating detectives the following. On the evening of October 4, 1991, defendant was in the area of Kolmar and Van Buren Streets in Chicago. He saw a prostitute leaving Checks' parked car. Defendant approached the car with his gun drawn. Cheeks was asleep inside. Defendant got into the back seat of the vehicle and took $50 from Cheeks' back pocket. Cheeks told defendant that he was a fireman and a graduate of Malcolm X College.

Defendant ordered Cheeks to drive west on Van Buren Street. After traveling about 10 feet, defendant ordered Cheeks to stop the car. Cheeks then attempted to grab the gun from defendant. The gun discharged, shooting Cheeks.

Hanrahan further testified that he asked defendant whether defendant wanted Hanrahan to believe that the shooting was an accident. Defendant allegedly replied, "If you think this is an accident, how do I explain shooting him the second time and torching his car[?]"

Defendant repeated essentially the same version of these facts to Assistant State's Attorney Peter Fisher. He added that the revolver which police officers had seized from the back seat of Burks' car was the gun defendant had used to shoot Cheeks.

Detective Gene Harris and Assistant State's Attorney Charles Burnes also testified concerning statements made to them by defendant. Defendant stated to them that his prior statement concerning a prostitute had not been true. According to Harris, defendant told them that he and a friend had staked out some public telephones at 47th and Woodlawn Streets waiting for someone to rob. A black jeep-like vehicle pulled up to the telephones. A black man got out and used the telephone. Defendant told his friend that the black man was whom they were going to rob. At the time, defendant was armed with a Colt Python .357 Magnum.

Defendant and his friend approached the vehicle. The man appeared to have fallen asleep. Defendant "put the gun on the man" and told him to move over to the passenger's side of the vehicle. Defendant got in the driver's side while his friend entered the back seat. They took the man's coat, gold chain, watch and cash.

Eventually, defendant, his friend, and Cheeks switched seats. Cheeks ended up back in the driver's seat with defendant in the back seat. While defendant held the gun on Cheeks, defendant's companion instructed Cheeks to drive west on the Eisenhower Expressway. Because the vehicle was low on gasoline, Cheeks exited the expressway at Ashland Avenue for a gasoline station. Defendant's friend pumped the gasoline.

Cheeks told defendant his name and that he was a fireman. Defendant stated that at this point, he wanted to get away, but he was afraid that Cheeks would report the incident to the police. After purchasing the gas, defendant's companion ordered Cheeks to continue driving west on the expressway.

Cheeks continued on the Eisenhower, exited north onto Kostner Avenue, and ultimately proceeded west on Van Buren Street. After passing under a viaduct, defendant's friend told Cheeks to pull into a vacant lot. Cheeks panicked and attempted to grab the gun. The gun discharged twice, defendant jumped into the front passenger seat, accidently releasing the victim's safety belt, and the victim jumped from the vehicle and ran.

Defendant stated that he did not chase Cheeks; he and his companion started, instead, to walk away. Defendant then realized that he might have left fingerprints inside the vehicle by which he could be identified. Defendant then told his companion that they had to destroy the vehicle. The two purchased gasoline, poured it on the dashboard of the truck and tried, unsuccessfully, to ignite it with a cigarette lighter. On the second attempt, there was an explosion that burned defendant's face.

On October 8, 1991, Jim Sanders, an evidence technician assigned to the Chicago police department mobile crime lab, examined Burks' car at the police garage. He inventoried the weapon found in Burks' car and transported it the crime lab. At the time of its recovery, the gun was loaded with five rounds of .38-caliber ammunition.

Robert Smith, a firearms examiner with the Chicago police department identified the gun seized from Burks' car as a .357 Magnum Colt revolver. He testified that that particular gun was capable of firing .38-caliber bullets. Smith also examined the fired .38-caliber copper bullet jacket which had been recovered from Cheeks' vehicle. He was not able to form an opinion that the jacket was fired from a particular firearm. In his opinion, however, the jacket could have been fired from the Colt revolver.

Officer Stanley Mocaldo, a latent fingerprint examiner, testified that he identified four prints from the gun which were consistent with defendant's fingerprints. Other prints on the revolver, however, were not suitable for comparison.

Dr. Edmund Donoghue, a forensic pathologist, testified that an autopsy of Cheeks' body revealed 22 "evidences of injury," four of which were gunshot wounds. The trajectory of one bullet suggested that Cheeks might have been shot as he lay on the ground. There were scrapes, abrasions and bruises on various parts of Cheeks' body. In addition, the autopsy revealed that Cheeks was intoxicated at the time of his death. In Donoghue's opinion, death resulted from multiple gunshot wounds.

Defendant was convicted of first degree murder, aggravated kidnapping, armed robbery and arson. Defendant waived jury sentencing. Following presentation of evidence and argument, the trial court determined that defendant was eligible for the death penalty based upon the presence of one statutory aggravating factor, murder in the course of an armed robbery. (See Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6).) Finding "no mitigation evidence," the court sentenced defendant to death. Evidence offered at sentencing, as it relates to sentencing issues raised in this appeal, is set out below.

JURY SELECTION

Defendant first asserts that the State's violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, denied him equal protection of the law. He contends that reasons given by the prosecution for its use of peremptory challenges in excluding two black venire members were merely pretexts for purposeful racial discrimination.

Batson provides a three-step process for the evaluation of racial discrimination claims in jury selection. The objecting defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. If the defendant satisfies that initial burden, the burden then shifts to the prosecutor to articulate a race-neutral explanation for excluding the venire member in question. Third, and finally, the trial court must determine whether the defendant has met his burden of proving purposeful discrimination. Batson, 476 U.S. at 97, 90 L. Ed. 2d 69, 106 S. Ct. 1712; Hernandez v. New York (1991), 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866.

A race-neutral explanation is one based upon something other than the race of the juror. In assessing an explanation, the focus of the court's inquiry is on the facial validity of the prosecutor's explanation. ( Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) There is no requirement that the explanation be persuasive, or even plausible. A "'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection." (Purkett v. Elem (1995), 514 U.S. , , 131 L. Ed. 2d 834, 840, 115 S. Ct. 1769, 1771 (per curiam).) Absent an inherent discriminatory intent in the prosecutor's explanation, the reason offered will be deemed race neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.

Finally, the trial court's finding with respect to discriminatory intent is a matter of fact, turning largely on questions of credibility. Therefore, on review the court's findings are afforded great deference. ( Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21.) Unless the court's finding is clearly erroneous, reversal is not required. Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412, 111 S. Ct. at 1871; People v. Hope 168 Ill. 2d 1, 658 N.E.2d 391, 212 Ill. Dec. 909 (1995), No. 75503, slip op. at 11.

Here, at the close of jury selection, defense counsel moved for a mistrial. In support, counsel argued that the prosecution had improperly used three of four peremptory challenges to exclude black venire members-Robert Canady, Ola Love and Sandy McElwee.

The trial court found a prima facie case of racial discrimination as to the exclusion of Canady and Love and, therefore, requested that the prosecution state its reasons for the exclusions. No similar finding was made with respect to venire member McElwee, and defendant asserts no error in that regard. The State urges, "simply for preservation of the issue," that the trial court's finding that defendant had made a prima facie case was against the manifest weight of the evidence. We consider whether the trial court's subsequent finding that the State articulated race-neutral reasons for the exclusion of Canady and Love was proper.

Venire Member Canady

The record reveals the following statements offered by Assistant State's Attorney Rodi for the exclusion of venire member Canady. When Rodi entered the courtroom and heard the judge say Canady's name (pronounced Candy), with that unique spelling, she personally felt that she had met Canady before. Although she could not place him in the court system, she did not believe that she had encountered him in her private life. She stated that if she "could have put [her] finger on the case," she would have excused Canady for cause. Rodi did not know whether Canady had been involved previously in a case as a friend of a family member, a defendant, a victim or a witness, but she was convinced that she had known or met him before. She stated that the more Canady sat there and spoke, the stronger her convictions were that she had met him previously. Rodi also pointed to the fact that Canady hesitated when asked if he could sign a guilty verdict.

Rodi summarized that she could have met Canady over a variety of causes, not all of them friendly to the State. That, she stated, combined with Canady's hesitation concerning signing a guilty verdict, was the basis for the exclusion of him.

Defendant argues that the trial court erred in accepting Rodi's explanation as race neutral. He maintains that Rodi's "fuzzy recollection" of an encounter with Canady in some unspecified context, at an unspecified time, and at an unspecified place simply does not satisfy Batson's clear and specific requirement. He complains that Rodi exercised only an intuitive judgment or suspicion in excluding Canady. Defendant contends that Rodi's lack of information along with her failure to tender supplemental questions, the answers to which might have allayed her concerns, were no more than pretexts for racial discrimination.

True, for purposes of meeting a Batson challenge, a prosecutor's explanation of the use of a peremptory challenge must be clear and legitimate. However, such explanation need not rise to the level that justifies a challenge for cause. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.

The fact that Rodi could not recall the exact circumstances of her previous encounter with Canady did not render her explanation inherently discriminatory. Absent discriminatory purpose, the exclusion of prospective juror Canady amounted to no more than a valid exercise of a peremptory challenge. "'While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable.'" (Emphasis omitted.) Batson, 476 U.S. at 135, 90 L. Ed. 2d at 113, 106 S. Ct. at 1743 (Rehnquist, C.J., dissenting), quoting Swain v. Alabama (1965), 380 U.S. 202, 220, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 836. See also People v. Aguirre (1993), 242 Ill. App. 3d 469, 182 Ill. Dec. 902, 610 N.E.2d 771 (peremptory challenge upheld where the ...


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