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03/26/97 PEOPLE STATE ILLINOIS v. DAVID STARKS

March 26, 1997

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID STARKS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Circuit, Will County, Illinois. No. 89-CF-665. Honorable Rodney Lechwar, Judge, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published April 15, 1997. Released for Publication May 30, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Thomas J. Homer, Justice, Honorable John F. Michela, Justice. Michela, J., with Lytton, P.j., and Homer, J. concurring.

OPINION

In July 1989, defendant, inmate David Starks, along with inmates Salvatore Giancana and William Cabrera, were charged by indictment with two Counts of first degree murder (720 ILCS 5/9-1(a) (West 1992)) for the death of a Stateville prison guard, Lawrence A. Kush, Jr. (the victim). A Will County jury convicted defendant of both Counts. The jury directed the court not to impose the death penalty, and the court sentenced defendant to a term of natural life imprisonment.

On appeal, defendant raises numerous issues that can be generally described as errors concerning: shackling, jury selection, admission and publication to the jury of autopsy photos, improper prosecutorial remarks during closing argument, and whether he was denied his right to a fair trial by an impartial jury. For the following reasons, we affirm.

Prior to trial, defense counsel requested that the court allow defendant's legs to be unshackled during trial. Although the court denied this request, it took steps to insure that the jury would not see defendant shackled, and it permitted defendant to be present without handcuffs.

During voir dire, certain venire members were examined outside of defendant's presence. Defendant did not object to this questioning. However, defense counsel moved for a mistrial, citing Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and arguing that the People had exercised certain peremptory challenges for discriminatory purposes. The court found that the People's reasons for excluding the venire members were non-discriminatory and denied the motion.

At trial, testimony was heard by the People's witnesses and over defense counsel's objection, the court admitted and published to the jury, autopsy photos of the victim. Following the People's case-in-chief, the defense rested without presenting any evidence.

Closing arguments were heard, and following deliberations, the jury convicted defendant of both Counts. The jury directed the court not to impose the death penalty and defendant was sentenced to a term of natural life imprisonment. The court denied defendant's post-trial motion and defendant appeals.

I. SHACKLING

The issue of shackling is one that rests within the sound discretion of the court, and absent an abuse of that discretion, a court's decision will not be overturned on appeal. People v. Boose, 66 Ill. 2d 261, 5 Ill. Dec. 832, 362 N.E.2d 303 (1977). A defendant may be shackled when there is reason to believe that he may attempt to escape, or he poses a threat to the safety of the courtroom, or to maintain order during trial. Boose, 66 Ill. 2d at 266.

In this matter, the court based its denial of defendant's request to remove his shackles on the following permissible factors: (1) the charge against defendant was serious; (2) shackles were necessary to prevent flight; (3) defendant's prior record was indicative of other acts of violence, i. e. at trial he was serving a sentence for a 1987 conviction of attempt murder, aggravated battery, and armed robbery; (4) there existed a potential for mob action or revenge from the victim's family; and (5) the layout of the courthouse presented security problems of "monstrous proportions." See Boose, 66 Ill. 2d at 266-67.

Evidence in the record supports the court's decision, and it is apparent from the record that the court balanced defendant's right to a fair trial against permissible factors favoring shackling him. We therefore find that the court did not abuse its discretion in requiring defendant to remain shackled.

II. PEREMPTORY CHALLENGES.

Defendant next contends that he was denied a fair trial due to the People's violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The "command of Batson is to eliminate, not merely to minimize, *** discrimination in jury selection." U.S. v. David, 803 F.2d 1567, 1571 (1986).

Defendant asserts that during voir dire, the People peremptorily challenged an African-American, Samuel Abdullah (Abdullah), and an Asian-American, Yong Gibson (Gibson), for ...


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