Appeal from the Circuit Court of Cook County. No. 96 CR 10071. Honorable Joseph J. Urso, Judge Presiding.
The opinion of the court was delivered by: Justice O'Brien
JUSTICE O'BRIEN delivered the opinion of the court:
Defendant, Alfred Roberts, appeals his conviction for possession of a controlled substance with intent to deliver and his sentence of 12-years' imprisonment. On appeal, defendant contends the trial court erred in: (1) denying defendant's pretrial motion in limine to preclude reference to his prior convictions for the identical offense charged, (2) allowing the State to exercise racially motivated peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83, 106 S. Ct. 1716, 1719 (1986); (3) failing to instruct the jury on the lesser included offense of simple possession, and (4) sentencing the defendant to 12-years' imprisonment. We reverse and remand for a new trial.
Pretrial, defendant requested an order in limine restricting the use of his prior convictions for possession with intent to deliver a controlled substance because of their prejudicial nature. The trial court denied the motion, stating that defendant's prior convictions could be used by the jury to assess defendant's credibility. Alternatively, defendant requested the use of the "mere fact" of defendant's prior felony convictions, without reference to their specific nature. The trial court denied the motion and jury selection began.
During jury selection, defendant made a motion, pursuant to Batson, alleging the State was using its peremptory challenges to exclude black members of the venire. The State asserted unemployment and residence with his parents for excluding a particular potential black juror. The defendant countered that the State had accepted a young white male juror who was also unemployed and living with his family.
Then, the following ensued:
"THE COURT: Does the State wish to respond further?
THE COURT: All right. I find they have made a preliminary challenge as far as the last-preliminary showing as to the last juror, Mr. McClendon.
Now, Mr. State's Attorney, would you like to respond? There has been a valid reason as to everybody else, but not as to the last juror, Mr.McClendon.
PROSECUTOR: If you can give me one moment? Judge, I have nothing further to add other than-
THE COURT: You have nothing further to add when I said they have made a preliminary-you cannot give me another reason?
PROSECUTOR: Judge, may I see the card?
THE COURT: Let's have the cards, please.
PROSECUTOR: I believe I handed it to Your Honor. Judge, I would just note that on his juror information card he gave no information as to any type of occupation.
THE COURT: Please indicate the reason why that person was excused.
PROSECUTOR: The reason why that person was excused, Judge, is because ...