Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
The defendant, Frazier Crockett, was convicted on June 27, 1996, on two counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1-A) and armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2-A). The defendant was sentenced to natural life in prison without parole on the murder charges, and received 30 years incarceration for the two counts of armed robbery. On appeal the defendant argues that he is entitled to a new trial because the State engaged in impermissible racial discrimination in the selection of the jury; because the trial court failed to respond to a question by the jury during its deliberations and failed to inform defense counsel of that question; and because a witness was incorrectly permitted to testify that she made a prior statement to police consistent with her trial testimony. For the reasons discussed below, we remand for further proceedings.
The defendant, who was an African-American, was tried before a jury. The judge conducted the voir dire examination of the venire, during jury selection. The first six venire members, none of whom were African-American, were accepted by the State. The seventh, also non- African-American, had two prior arrests and was therefore peremptorily challenged by the State. The State then exercised a peremptory challenge to excuse Vertreasa Edwards, an African-American woman who was the 8th venire member. During voir dire Edwards stated that she had arthritis, which would prevent her from sitting for a long time, but she thought that nevertheless she could endure jury service. She also stated that she had religious convictions which could preclude her from signing a guilty or not guilty verdict, but after the judge explained that the jury had nothing to do with sentencing she indicated that she could apply the law to the evidence. In addition, Edwards said that she owned a home on the south side of Chicago; she was married to a retired employee of a chemical company; was herself a retired employee of the R.R. Donnelly printing company and had two children, ages 48 and 46. The State accepted the next three jurors, all of whom were African- American. Thereafter, the 12th venire member, Tonia Felton, another African-American woman was peremptorily challenged by the state during voir dire. Felton said that she was single, and had rented an apartment on the west side for the past six months. Before that, she lived on the south side. She was employed by an organization that provides services for the mentally disabled, and has a nine-year-old child. She and her father had both been victims of burglaries and she was involved in an automobile accident which resulted in a settlement. The next juror, who was white, was accepted.
Counsel for the defendant then made a "Batson motion," pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), charging that the State was intentionally excluding African-Americans from the jury. In denying the Batson motion, the following colloquy took place with respect to Edwards and Felton.
"MS. LAMBERT [Defense Counsel]: The State used three challenges, is that correct?
MR. MULLENIX [Defense Counsel]: Two on female blacks. I believe the first, Vertreasa Edwards, your Honor. She said that she was retired from R. R. Donnelly where she worked for years. She worked at - I'm sorry. She lived on the south side for thirty-two years. I don't recall what she said about her husband. I believe he too was retired.
THE COURT: This is the one that answered two of the preliminary questions, one that she had bad arthritis and she was having trouble sitting down and she needed to move around.
MS. LAMBERT: Your Honor did question her extensively about whatever that was - MR. CENAR [Assistant State's Attorney]: The other was religion.
THE COURT: The other, but the arthritis is the one that stands out in my mind, because she was fighting it all the way. And she said, in my estimation put up the good battle to stay. So let's move on to the next one.
MR. MULLENIX: Tonia Felton, Judge.
MS. LAMBERT: I have no idea why the State would want to excuse that woman [Felton] other than the fact that she is a female black, young, you know, and twenty-seven years old.
MR CENAR: Judge, you want me to respond?
MR. CENAR: So they made a prima facie case?
MR. CENAR: I would point out that she is single. She rents. She's not a homeowner. She is young. She is twenty-seven. No significant ties to the community.
And Judge, I don't think there is any pattern of exclusion.
THE COURT: I don't think there is either. So I'll deny your motion. In addition, she's a single parent, with a nine-year-old. So I don't see any pattern with regard to that."
The defense later renewed its Batson motion when the State struck an additional African-American woman, Barbara Gatewood. Gatewood said she was single, lived on the south side where she rented from her parents and worked for a food service company. Her mother was not employed and her father was retired from a paper company. One of her neighbors was a Chicago police officer. Without discussing the issue of a prima facie case, the court elicited reasons for Gatewood's exclusion by the State. The assistant State's Attorney explained that Gatewood was excused because she lived near the address of the defendant's girlfriend, to which the police first went for the purpose of arresting the defendant, but did not find him there. The court stated:
"THE COURT: All right, then with regard to the explanation given by the State, I do not think it falls under the theory of Batson."
The case then proceeded to trial on the merits.
The substantive facts in this case revolve around the killing of Javier Guzman and Jorge Torres in September of 1992. There is no dispute that the bodies were both found laying face down in the alley behind 1859 West Farwell near the intersection of Pratt and Wolcott in Chicago's Rogers Park neighborhood. Wallets, identification and other personal items were found nearby. Both victims had been shot in the back of the neck. Guzman and Torres were apparently on their way home from their jobs at a pizza restaurant. They had been paid earlier that day, and had stopped at a bar/liquor store and purchased beer.
Maria Burnett testified for the State that she is an assistant State's Attorney for Cook County and that on the night of January 25, 1993 she was present at the Area 3 police station in Chicago in connection with the investigation of the murders of Torres and Guzman. While at the station she took a statement from the defendant which was memorialized by a court reporter.
In his statement the defendant averred that on September 21, 1992, he was living at Pratt and Ashland with Kenneth Henry, Henry's girlfriend, D.D., "James" (later identified as James Swansey) and "Dominica" (later referred to as "Donika" and "Domika"). On the date in question, James told the defendant that he had to go get some money to buy Pampers for his baby, and defendant agreed to go with him. They went to Pratt and Clark, whereupon James told defendant that he had a gun and asked him to keep an eye out for the police. As they were walking down the street, they saw "two Mexicans" walking ahead of them. They crossed the street to get ahead of the "Mexicans," who turned into an alley. The "Mexicans" looked back out of the alley, and James asked them "what the F they was looking at" and approached them with his gun out.
James ordered the two victims to lay on the ground, and asked them if they had any money. The victims replied that they did not. At that point James heard a noise, and handed the gun to defendant while he went to the corner of the alley to look around. James returned to where the defendant was standing, took the gun, and began searching the victims for money, but did not find any. The defendant then searched the victims and found money in one of their pockets. He then said to James, "I hate people ...