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12/23/96 PEOPLE STATE ILLINOIS v. GREGORY PECOR

December 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GREGORY PECOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Frank Meekins, Judge Presiding.

Released for Publication February 13, 1997. Certiorari Denied November 10, 1997,

The Honorable Justice Gordon Delivered The Opinion OF The Court: McNULTY and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

The defendant, Gregory Pecor, a white male, was convicted by a jury of murder, armed robbery and residential burglary and was sentenced to natural life imprisonment without parole for murder, thirty years' imprisonment for armed robbery and fifteen years imprisonment for residential burglary. He appealed his conviction and sentence raising several contentions of error. One error alleged to have occurred was the State's improper use of its peremptory challenges to exclude black venirepersons from the petit jury. Based upon that contention, this court reversed and remanded the case to the trial court for a Batson hearing (see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)) and reserved ruling as to all other claims of error. People v. Pecor, 213 Ill. App. 3d 472, 572 N.E.2d 1064, 157 Ill. Dec. 600 (1991), aff'd, People v. Pecor, 153 Ill. 2d 109, 606 N.E.2d 1127, 180 Ill. Dec. 50 (1992). On remand, at the conclusion of the Batson hearing, the trial court found that the State provided race-neutral explanations for its exclusion of six black venirepersons and that no Batson violation had occurred. The defendant now appeals from that finding as to five of the six exclusions. *fn1

I. Batson Facts & Issue

In Batson v. Kentucky, the United States Supreme Court held that prosecutors who excluded potential jurors on the basis of their race violated the Fourteenth Amendment's guarantee of equal protection. In a subsequent case, that court held that the defendant need not be of the same race as the excluded jurors in order to have standing to raise that constitutional violation. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). In order to prevail on a Batson claim, the defendant must first establish a prima facie case of purposeful discrimination by showing facts or circumstances that raise an inference that the prosecutor used his peremptory challenges to remove members of a cognizable racial group from the venire. The burden then shifts to the prosecutor to articulate a race-neutral explanation for excluding the venire member in question. Then, the trial court must determine whether the defendant has met his burden of proving purposeful discrimination. Batson 476 U.S. at 97-98, 106 S. Ct. at 1723-24. See also Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1993) (plurality opinion); People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351, 125 Ill. Dec. 781 (1988); People v. Randall, 283 Ill. App. 3d 1019, 671 N.E.2d 60, 219 Ill. Dec. 395 (1996).

At the second step of the Batson process, after the burden has shifted to the State to establish race-neutral reasons for the exclusion, the prosecutor must give clear and reasonably specific, legitimate, race-neutral reasons. Randall, 283 Ill. App. 3d at 1025. Those reasons, which are subjective ( People v. Jones, 201 Ill. App. 3d 440, 559 N.E.2d 112, 147 Ill. Dec. 112 (1990)), need not rise to the level that justify challenges for cause ( People v. Mack, 128 Ill. 2d 231, 538 N.E.2d 1107, 131 Ill. Dec. 551 (1989)) but must demonstrate neutral explanations that relate to the particular case being tried. People v. Fryer, 247 Ill. App. 3d 1051, 618 N.E.2d 377, 187 Ill. Dec. 786 (1993). As stated in Purkett v. Elem, 514 U.S. 102, , 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam), "a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection." Accord People v. Figgs, 274 Ill. App. 3d 735, 654 N.E.2d 555, 560, 211 Ill. Dec. 93 (1995). 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, 111 S. Ct. at 1866.

Once the State has come forward with its reasons for striking the venirepersons, the trial court must assess the facial validity of the prosecutor's explanations ( Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866) and determine whether the reasons given are sufficient or whether they are pretextual. People v. Harris, 129 Ill. 2d 123, 544 N.E.2d 357, 135 Ill. Dec. 861 (1989); People v. Nunn, 273 Ill. App. 3d 519, 652 N.E.2d 1146, 210 Ill. Dec. 170 (1995). As the trial court's finding in that regard is factual and turns largely on questions of credibility, its findings are afforded great deference and will not be overturned on review unless they are found to be clearly erroneous or against the manifest weight of the evidence. Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21; Hernandez, 500 U.S. at 364-69, 111 S. Ct. at 1868-71; People v. Andrews, 155 Ill. 2d 286, 293-94, 614 N.E.2d 1184, 1189, 185 Ill. Dec. 499 (1993); Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.

The record of the Batson hearing held on remand shows that the trial court was not convinced that the defendant had established a prima facie case of purposeful discrimination. In that regard the court stated:

"in summation, this is a case in which I would feel very confident and very comfortable in finding that no prima facie case has been established by the defendant. However, in the interest of judicial economy, in the event that a reviewing court might disagree with that decision, I am going to find that a prima facie case has been established and I'm going to require the State to give its explanation for the exercise of its peremptory challenges as to the blacks in this case." *fn2

As to each of the five venirepersons who were the subject of the Batson challenge and who are the subject of the instant appeal, the following information was acquired during the voire dire and the following reasons were given for their exclusions: *fn3

(1) Chuck Edmonds

This venireperson was a 53-year-old ticket agent with the Chicago Transit Authority. He held that position for eight years; was single; had lived in the Chicago area for over thirty years; and had a sixteen-year-old son who sometimes resided with him. He was a veteran, having served in the army from 1951 to 1954 and belonged to the Chicago Urban League, Operation PUSH, and the American Legion. When asked by the trial judge what he did before becoming a ticket agent, Edmonds responded, "Student." When asked whether he had any "feelings or viewpoints concerning the ...


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