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People v. Rivera

September 22, 1999


The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County Honorable Daniel Kelly, Judge Presiding.

Following a jury trial in March 1997, defendant, Jose Rivera, was convicted of possession of a controlled substance (cocaine) with intent to deliver (720 ILCS 570/401 (West 1992)), and was subsequently sentenced to a term of 15 years' imprisonment. On appeal, defendant argues (1) the trial court erred by denying one of his peremptory challenges during jury selection; (2) he was denied his right to an impartial jury by the trial court's refusal to ask supplemental questions during voir dire; (3) he was denied a fair trial when he was prevented from presenting evidence of police bias against him; and (4) he is entitled to a new sentencing hearing because the trial court improperly considered a statutory factor in aggravation. For the following reasons, we affirm.


In October 1993, defendant, a Hispanic male, was charged with possession of between 400 and 900 grams of a controlled substance (cocaine) with intent to deliver. Following the denial of defendant's motion to quash the search warrant used to secure his arrest, the case proceeded to trial in March 1997.

At jury selection, the trial court initially addressed the members of the venire as a group. The court informed the venire that defendant had been charged with a drug offense, and admonished them that defendant was presumed innocent and that such presumption remains with him throughout trial. The court further explained that the State had the burden of proving defendant guilty beyond a reasonable doubt and that defendant was not required to present any evidence to prove his innocence. The court followed by asking the venire if they were unable to either understand or accept the foregoing principles. No member of the venire indicated in the affirmative. The court further asked the venire if they would treat the testimony of a police officer differently than the testimony of any other witness. Again, no venire member responded affirmatively.

Prior to individual examination, defense counsel submitted supplemental questions for voir dire, which were rejected by the trial court. Defense counsel specifically sought that each juror be asked if he or she had difficulty presuming the innocence of a person accused of being a drug dealer; if they had any family members or friends who experience or have experienced problems with substance abuse; and if they were unable to view the testimony of a law enforcement official objectively.

A total of 28 venire members were questioned. Following the removal of three members for cause, the court considered the written peremptory challenges of the parties. Both sides exercised all of their available challenges to each exclude seven jurors. After the court noted each side's respective strikes, defense counsel made a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), asserting the State's use of its challenges evidenced a racially discriminatory intent to exclude blacks from the jury. The four black venire members removed by the State were Zenobia Jenkins, Jerome Sallis, James Jett, and Darrell McKay.

After determining that defendant had established a prima facie case of racial discrimination, the trial court requested the State to offer race-neutral explanations for its challenges. In response, the State made its own Batson motion, commonly known as a "reverse-Batson" claim, charging defense counsel of engaging in race-gender discrimination by exercising six of its seven peremptory challenges on "white males." The six excluded jurors in question were William Bonar, Robert Stevenson, William Harling, George Havelka, Ronald Eberly, and Mark Dannenberg.

Proceeding on defendant's Batson motion, the court found the State's exclusion of Jenkins, Sallis and McKay legitimate. The court, however, found the State's reasons for excluding Jett illegitimate, and thus nullified the State's peremptory challenge and allowed Jett to serve on the jury.

The trial court then considered the merits of the State's reverse- Batson claim. The court clarified the scope of the State's challenge by noting that one of the excluded jurors, Dannenberg, had also been challenged by the prosecution. The court accordingly focused only on the exclusions of Harling, Bonar, Stevenson, Havelka, and Eberly.

The trial court never expressly found that the State had made a prima facie showing of discrimination. The court instead directed defense counsel to explain the use of his challenges. Notably, the record shows the court, in hearing defense counsel's proffered reasons, considered only whether the explanations were race-neutral, and did not address whether those reasons were also gender-neutral.

After noting that the record provided a sufficient "race-neutral reason" for Harling's removal, the trial court directed defense counsel to present reasons for challenging the remaining jurors. Following argument by both sides, the trial court accepted counsel's reasons for excluding Stevenson, Bonar and Havelka. The court, however, rejected counsel's explanation for Eberly's removal. Defense counsel explained that Eberly was stricken because "he said *** 'I think so' when asked if he could be fair," and thus "equivocated" regarding his ability to give defendant a fair trial. The record shows that during voir dire the trial court asked Eberly if his prior service as a juror would affect his judgment or ability to be fair and impartial in defendant's case. Eberly responded, "I don't think so." The court followed by asking Eberly if he would be able to follow the law as instructed and to disregard what he was told during his prior jury service. Eberly stated "[y]es." The court further asked Eberly if he could be fair to both sides, listen to the evidence objectively, and base his decision on the evidence and the law presented. Eberly answered affirmatively to each of these questions.

The trial court found that Eberly indicated that he could be fair. Finding counsel's explanation a pretext for racial discrimination, the court denied the challenge and impaneled Eberly on the jury.

At trial, the State's evidence established that on September 30, 1993, officers with the Chicago police department arrived with a narcotics search warrant at the apartment of David Garcia located at 3040 West Sunnyside in Chicago. At about 8 p.m., Detective Walter Smith saw defendant enter the front door of the building carrying a gym bag.

Upon a search of the bag, Smith recovered a large triple-beam scale and a clear plastic bag containing two separate bags of white powder. Smith then placed defendant under arrest.

During the cross-examination of Officer Smith, defense counsel asked Smith if he had participated in a 1988 police search of the home of defendant's parents. An objection by the State to counsel's questioning was sustained by the trial court. At a hearing held outside the presence of the jury, defense counsel explained his questioning was relevant to establish Smith's motive for targeting defendant. Counsel, however, did not make an offer of proof. The trial ...

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