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April 18, 1996


The Honorable Justice Nickels delivered the opinion of the court: Justice Miller, dissenting: Chief Justice Bilandic joins 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 Will County, defendant 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, and the trial judge found defendant eligible for the death penalty (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(3)). After considering factors in aggravation and in mitigation, the trial judge sentenced defendant to death (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(h)). Defendant appealed directly to this court. Ill. Const. 1970, art. VI, ยง 4(b); Ill. Rev. Stat. 1989, ch. 38, par. 9-1(i); 134 Ill. 2d R. 603.

While defendant's appeal was pending in this court, the Supreme Court announced its decision in J.E.B. v. Alabama ex rel. T.B., 511 U.S. , 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994). In J.E.B., the Court held that peremptory challenges cannot be used to discriminate on the basis of gender during jury selection. On appeal, defendant argued, inter alia, that the State had exercised its peremptory challenges in violation of J.E.B. This court found that defendant had established a prima facie case of gender discrimination ( People v. Blackwell, 164 Ill. 2d 67, 207 Ill. Dec. 44, 646 N.E.2d 610 (1995)) and remanded the cause to the circuit court for a hearing to give the State the opportunity to present reasons for its use of peremptory challenges. After a hearing, the circuit court found that the explanations advanced by the State for its use of peremptory challenges were gender neutral. Defendant again appeals to this court, challenging the trial court's ruling that the State's explanations were gender neutral.


Testimony at trial revealed the following. Defendant grew up in Joliet but later moved to Mississippi. On October 18, 1990, defendant was in Joliet visiting his friend Virgil Jones. On the evening of October 18, Jones suggested to defendant that they visit a friend of Jones who lived in a nearby apartment. Jones and defendant drove to this apartment, and defendant was introduced to four individuals, one of whom was Steve Scott. Defendant brought a semiautomatic handgun with him, concealed in the waistband of his trousers.

One of defendant's new acquaintances suggested that the group attend a party in another apartment in the building. At this time, unknown to defendant, four members of the Latin Kings gang were present at the patty. Shortly after defendant and his acquaintances arrived at the small studio apartment, a fight started between Steve Scott and the Latin Kings. Defendant then pulled out his handgun and fired at Scott's attackers. Three Latin Kings (Desiderio Martinez, Robert "Jimmy" Gonzalez, and John Garcia) were killed and another (David Lopez) was wounded. A fifth individual (Wendy Magee), who had accompanied defendant to the apartment and was not involved in the fight, was also wounded. The police later arrested defendant near Jones' apartment.

Eight witnesses, including defendant, testified regarding the specific details of the shooting. Several witnesses testified that the Latin Kings confronted Scott, "flashed" gang signs at him, and accused him of being a member of the "Two-Sixers" gang. The Latin Kings and the Two-Sixers were rival gangs in Joliet. At some point, one of the Latin Kings removed his own shirt, banged his own head against a wall, and said that he had just been released from prison. Scott told the Latin Kings that he was no longer a member of the Two-Sixers, but the Latin Kings blocked him into a corner of the apartment. Soon afterwards, the Latin Kings started pushing and grappling with Scott.

After the fight started, Scott managed to push his way to the door of the apartment and leave. The fight lasted about 15 seconds. The last time Scott saw the four Latin Kings they were facing toward the door and away from defendant. Before the shooting, no one threatened defendant or "flashed" gang signs at him. Scott's attackers did not draw any weapons, and Scott's only injury was a bump behind his ear. Several witnesses stated that the fight did not seem serious. Scott, however, testified that he was afraid that one of his attackers had a concealed weapon and would use it against him.

As Scott was leaving, defendant removed his weapon and fired one shot into the group that had attacked Scott. The four attackers started to turn towards defendant. Defendant then fired numerous shots at the victims. Defendant fired a total of 14 times in the span of 10 to 15 seconds at Scott's attackers. Some witnesses testified that one of the victims was shot after he had fallen to the ground. Witnesses also testified that a second victim was shot in the back of the head as he was fleeing. A third victim was shot five times, once when he was lying on the floor and kicking the door to the apartment as defendant was leaving.

Defendant testified at trial. Defendant stated that he brought a handgun with him to Joliet because he knew of the gang violence there. Defendant testified that his brother was killed by the Latin Kings in 1986 and that he and his family were harassed by the Latin Kings after his brother's shooting. For this reason, defendant and his family moved to Mississippi.

With respect to the shooting, defendant essentially testified that he panicked. Defendant stated that, after firing an initial shot, he fired rapidly into the mass of individuals in front of him. Defendant testified that, after the fight started, he was afraid that he might have to fight next. In addition, defendant thought that the victims might have weapons with them. The police later recovered a knife from the pockets of one of the victims. Defendant also believed that Scott's life was in danger when the Latin Kings were attacking Scott. According to defendant, he felt that the only way he could get out of the apartment was by shooting. After defendant was arrested, he gave the police a statement similar to this testimony.


During jury selection, the State exercised 15 of 17 peremptory challenges to exclude women from the venire, four of whom were black. Defendant argued that the State was racially discriminating in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). At a Batson hearing during voir dire, Assistant State's Attorney Thomas discussed the State's general strategy.

While seeking to show that the State was not discriminating on the basis of race, Thomas specifically noted that the State had used its 17 peremptory challenges to exclude 15 women from the jury. Thomas suggested that the State was excluding potential jurors on the basis of gender. Thomas then stated that he excluded the women because he was concerned about potential sympathy for defendant's mother. Thomas later reiterated this concern when discussing specific reasons for dismissing one of the prospective jurors. The jury was ultimately composed of five women and seven men. As stated, after the United States Supreme Court announced its decision in J.E.B., the cause was remanded by this court to the circuit court for a hearing to determine if the State had discriminated on the basis of gender.

At the remand hearing, the circuit court listened to the reasons offered by the State for each of its peremptory challenges. The State's reasons were offered by former Assistant State's Attorney Tomczak, who was one of the prosecutors at defendant's trial. Tomczak was not the prosecutor who had made the statements at the original Batson hearing. The State did not offer any explanations from Thomas, the prosecutor who had made the statements regarding gender.

Tomczak had possession of the notes taken during jury selection. He used these notes, as well as the transcript, to refresh his memory. Tomczak stated that this case was his first death penalty case and he therefore remembered it reasonably well. At the remand hearing, Tomczak introduced a second general strategy used by the State that was not presented at the original Batson hearing. He stated that, in his experience, jurors fall into two categories: "proactive" and "reactive." Proactive jurors are leaders and good communicators. They are more aggressive. Tomczak stated that he did not want too many proactive jurors on the jury because that would increase the possibility of a hung jury. Tomczak then went into specific detail about the reasons for excluding each woman from the venire. After hearing the State's reasons, the circuit court found that these reasons were gender neutral.


Defendant has raised several arguments on appeal. Based on our disposition of this case, we address only three issues: (1) whether the State discriminated on the basis of gender during jury selection; (2) whether the evidence was sufficient to support the first degree murder convictions; and (3) whether the imposition of the death penalty was excessive in this case. For the reasons discussed below, we reverse and remand for a new trial.


In J.E.B., the Supreme Court held that the use of peremptory challenges to discriminate on the basis of gender violates the equal protection clause. The Court stated that gender discrimination perpetuates misguided stereotypes about the relative abilities of men and women. J.E.B., 511 U.S. at , 128 L. Ed. 2d at 98, 114 S. Ct. at 1422. The Court also emphasized that gender discrimination harms the litigants the community, and prospective jurors who have been excluded. J.E.B., 511 U.S. at , 128 L. Ed. 2d at 104, 114 S. Ct. at 1427. In reaching its holding in J.E.B., the Court extended its decision in Batson, where the Court had prohibited racial discrimination during jury selection.

Accordingly, we apply the Batson approach in the context of gender discrimination. First, a defendant must make a prima facie showing that the State has exercised peremptory challenges on the basis of gender Second, if the trial court concludes that a defendant has made a prima facie showing, the burden shifts to the State to give gender-neutral explanations for dismissing the potential jurors. Finally, the trial court decides whether defendant has carried his burden of proving purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991).

In this case, we must determine whether the State has rebutted the prima facie showing of gender discrimination. The State's explanations for its peremptory challenges must be "'clear and reasonably specific'" and "related to the particular case to be tried." Batson, 476 U.S. at 98 & n.20, 90 L. Ed. 2d at 88 & n.20, 106 S. Ct. at 1724 & n.20, quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258, 67 L. Ed. 2d 207, 218, 101 S. Ct. 1089, 1096 (1981). The State may not rebut a defendant's prima facie showing by stating that it excused members of the venire in the belief that they would be sympathetic toward defendant because of their shared gender. See Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. Exclusion of even one potential juror on the basis of gender requires reversal. See People v. Harris, 129 Ill. 2d 123, 175, 135 Ill. Dec. 861, 544 N.E.2d 357 (1989).

We note, however, that each of the State's explanations for its peremptory challenges need not justify a challenge for cause ( Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723), and will be considered gender neutral "unless a discriminatory intent is inherent in the prosecutor's explanation" (see Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866). In addition, the prosecutors who exercised the peremptory challenges are not required to testify under oath and subject to cross-examination regarding the reasons for the peremptory challenges. People v. Young, 128 Ill. 2d 1, 24-25, 131 Ill. Dec. 78, 538 N.E.2d 453 (1989); see also Harris, 129 Ill. 2d at 174. The trial judge's determination is a finding of fact which necessarily involves an evaluation of credibility and will not be reversed unless it is clearly erroneous. Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412, 111 S. Ct. at 1871. Our review in this regard is deferential to the trial judge's determination.

We now consider the specific explanations given by the State. As part of his general strategy, Tomczak stated on remand, he wanted to limit the number of proactive jurors on the jury. He specifically applied this explanation to four of the women excused from the venire. One of the women, Barbara Bonow, was a customer service representative. Tomczak stated that she was a good communicator. Louise Kujath was proactive because she answered questions ...

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