The opinion of the court was delivered by: Chief Justice McMORROW
Docket No. 88468-Agenda 3-November 2001
Defendant James Harris petitioned the circuit court of Cook County for post-conviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)). The circuit court dismissed defendant's amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). For the reasons set forth below, we affirm in part, reverse in part, and remand for an evidentiary hearing on certain claims raised by defendant.
On direct review, this court recited the details of defendant's crimes. See People v. Harris, 129 Ill. 2d 123 (1989) (Harris I); People v. Harris, 164 Ill. 2d 322 (1994) (Harris II). We need not repeat those details here. In 1984, following a jury trial in the circuit court of Cook County, defendant was convicted of the murder of Jesse James, Sr., the owner of a tavern on the South Side of Chicago, and the attempted murder of Theresa Woods, who worked as a waitress at the tavern. Defendant also was convicted of one count of aggravated battery and two counts of attempted robbery in connection with this incident, which occurred on February 10, 1983. Defendant received the death penalty for the murder conviction and sentences of imprisonment for the remaining felonies.
During the pendency of his appeal, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and this court remanded for a hearing, in light of Batson, on defendant's claim of discrimination in the exercise of peremptory challenges. Following this hearing, the circuit court denied relief. On direct appeal in Harris I, this court again remanded, determining that additional proceedings were required for resolution of the Batson issue. The court also found that during the sentencing hearing, the circuit court had improperly considered evidence of a 1969 "murder" for which defendant was never convicted. We vacated defendant's death sentence, and conditionally vacated his convictions and non-death sentences subject to reinstatement. Harris I, 129 Ill. 2d at 189. On remand from Harris I, the circuit court resolved the Batson issue adversely to defendant and reinstated his convictions. The case was then assigned to a different judge for a new sentencing hearing. Following this hearing, the circuit court again sentenced defendant to death for the murder conviction. On appeal, this court affirmed in Harris II.
On June 27, 1995, defendant filed a pro se petition for post-conviction relief. Subsequently, through appointed counsel, defendant filed an amended petition and a supplement to the amended petition. The amended post-conviction petition raised eight claims for post-conviction relief. We set forth only those claims that are raised by defendant in this appeal.
First, the amended post-conviction petition alleged that defendant was denied his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) when, during his initial Batson hearing, his attorneys failed to establish the race of two venirepersons who were excused by the State. The petition asserted that, because of this allegedly defective performance, defendant's subsequent Batson appeal was reviewed as to only 15 excused venirepersons rather than the 17 that the petition alleges were excused by the State.
Second, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) with regard to his counsel's handling of his pretrial motion to suppress evidence. Defendant alleged errors on the part of his trial counsel, post-trial counsel and appellate counsel with regard to this issue. According to the petition, defendant's trial counsel failed to impeach one of the State's witnesses during the pretrial hearing on the motion to suppress and failed to ask during trial that the motion to suppress be reopened on the ground that this same witness materially changed his testimony at trial. Defendant alleges that his post-trial counsel failed to point to these alleged deficiencies in trial counsel's performance as a basis for granting a new trial. Defendant alleges in addition that, "[t]o the extent that this issue arguably could have been raised on appeal, Mr. Harris was also denied the effective assistance of appellate counsel."
The amended petition also set forth a claim alleging that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) during the eligibility phase of his second capital sentencing hearing. According to the petition, defense counsel failed to call as a witness former Chicago police officer Phyllis Ham Garth, whose testimony defendant claims would have raised a reasonable doubt as to whether he acted with the mental state required to render him death eligible.
In addition, the amended post-conviction petition alleged that defendant was denied due process of law when the State knowingly presented false aggravation evidence at the second capital sentencing hearing and failed to turn over to defense counsel medical reports that would have shown the evidence to have been false. According to the amended petition, John Szumigala, who testified in aggravation at the hearing, exaggerated the extent of the injuries he suffered as the victim of a 1971 robbery for which defendant was convicted.
In a related claim, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel at his second capital sentencing hearing when his attorneys failed to rebut the testimony of John Szumigala in aggravation. The focus of this claim is that defense counsel failed to investigate and present a readily available defense to the State's primary evidence in aggravation.
Finally, the amended post-conviction petition alleged that defendant was denied the effective assistance of appellate counsel when his attorney failed to raise a meritorious issue on direct appeal concerning the use of victim impact evidence from a prior unrelated offense. According to the petition, the evidence in question was victim impact testimony given by John Szumigala during defendant's second capital sentencing hearing.
In support of the allegations in his petition, defendant attached affidavits of the two venire members whose race had not been established at the first Batson hearing. Edward Shealy, one of these venirepersons, stated in his affidavit that he is African American, and Christine Riley Brown, the other venireperson, stated that she is Latino-American. Also attached were affidavits of investigators Jonathan Lyon, Appolon Beaudouin, Jr., and Edward Torres, as well as a copy of a Cook County circuit court record, all of which indicated that Brown appeared to be African American. Defendant also attached an affidavit of Michael Levitin, one of his attorneys at the Batson hearing, stating that he had made no strategic decision not to present affidavits or other documentary evidence to establish the race of Shealy or Brown.
Defendant's amended post-conviction petition was also supported by a separate affidavit of attorney Michael Levitin, who was also defendant's post-trial counsel. In his affidavit, Levitin stated that he made no strategic decision to exclude from his post-trial motions any issues regarding trial counsel's ineffectiveness in handling defendant's pretrial motion to suppress evidence. Also attached was an affidavit of attorney James Chadd, defendant's counsel in his first appeal to this court. Chadd stated in his affidavit that he made no strategic decision to exclude from his appellate brief the issue of trial counsel's handling of defendant's motion to suppress.
In addition, defendant attached to his amended post-conviction petition a copy of a police report signed by former Chicago Police Officer Phyllis Ham (now Garth) recounting her interview with Theresa Woods following the incident on February 10, 1983, in which Jesse James, Sr., was killed. Defendant also attached a separate affidavit of investigator Jonathan Lyon recounting conversations with Officer Garth in which Garth confirmed Woods' statements to her and the accuracy of Garth's report.
Defendant's amended post-conviction petition was also supported by a copy of the medical records from the hospital where John Szumigala was treated after the 1971 robbery. The injuries reflected in these records do not appear to be as severe as those described by Szumigala at the sentencing hearing. Defendant also attached an opinion letter from a physician stating that the medical records do not "bear out the allegations of Mr. Szumigala's permanent injury," which the physician stated "would certainly have appeared by the time he was discharged from the hospital." In addition, defendant attached a copy of Szumigala's 1971 testimony in the trial on the robbery charge, which differs somewhat from the testimony Szumigala gave at the sentencing hearing in 1992. Also attached was an affidavit of attorney Joseph McElligott, who represented defendant at his second capital sentencing hearing. In his affidavit, McElligott averred that he did not receive Szumigala's 1971 medical records from the State. McElligott added that if he had received the records, he "would have used them to further impeach Mr. Szumigala's testimony."
Finally, defendant's amended post-conviction petition was supported by an affidavit of Charles Hoffman, who represented defendant on appeal from the second capital sentencing hearing. In his affidavit, which addressed the issue of the admissibility of John Szumigala's victim impact testimony, Hoffman stated that he made no strategic decision not to raise this issue.
On August 20, 1997, the State filed an amended motion to dismiss defendant's amended post-conviction petition. Following oral argument, the circuit court granted the State's motion to dismiss defendant's amended post-conviction petition without an evidentiary hearing.
The circuit court concluded that the issues raised in the petition were either previously litigated or "do not raise questions of law such that the defendant's constitutional [rights] have been neglected or sacrificed." The court rejected defendant's claim that he was denied the effective assistance of counsel at his Batson hearing. The court also rejected defendant's claim that his appellate counsel was ineffective for failing to raise the issue of the improper use of victim impact evidence from a prior unrelated offense.
Defendant moved to reconsider and vacate judgment, and the motion was denied. Because defendant was sentenced to death for the underlying murder conviction, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). We will recount additional relevant facts in the context of the issues on appeal.
The Illinois Post-Conviction Hearing Act provides a mechanism by which criminal defendants can assert that their convictions and sentences were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122-1 (West 1996). An action for post-conviction relief is a collateral proceeding and is not an appeal from the underlying judgment. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000); People v. Morgan, 187 Ill. 2d 500, 528 (1999). In order to be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. Morgan, 187 Ill. 2d at 528; People v. Tenner, 175 Ill. 2d 372, 378 (1997).
The purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, and could not have been, adjudicated previously on direct appeal. People v. Haynes, 192 Ill. 2d 437, 464 (2000); People v. Towns, 182 Ill. 2d 491, 502 (1998). Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata. Towns, 182 Ill. 2d at 502; People v. Whitehead, 169 Ill. 2d 355, 371 (1996), overruled on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998). Issues that could have been presented on direct appeal, but were not, are waived. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. However, the doctrines of res judicata and waiver are relaxed in three situations: where fundamental fairness so requires, where the alleged waiver stems from the incompetence of appellate counsel, or where the facts relating to the claim do not appear on the face of the original appellate record. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 371-72.
A defendant filing a post-conviction petition is not entitled to an evidentiary hearing as a matter of right. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 370-71. An evidentiary hearing on post-conviction claims is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995); Towns, 182 Ill. 2d at 503. A trial court's determinations regarding the sufficiency of the allegations in a post-conviction petition are reviewed de novo. Morgan, 187 Ill. 2d at 528; People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
With these principles in mind, we consider whether the circuit court erred in dismissing defendant's post-conviction petition without an evidentiary hearing. Before this court, defendant raises six claims for review. We address each of them seriatim.
Defendant argues that his attorneys were ineffective at his first Batson hearing when they failed to establish the race of Edward Shealy and Christine Riley Brown, two venirepersons who were excused by the State.
At the start of the hearing, which took place in 1987, the parties disputed the total number of African American venirepersons who had been peremptorily challenged by the State. Defense counsel argued that the number was 17, while the State maintained that the total was 15. The two disputed venirepersons were Shealy and Brown. At the behest of the trial court, defense counsel investigated the matter and informed the court that while he had been unable to speak directly to Shealy and Brown, he had spoken by telephone with members of their households, who informed him that Shealy and Brown were African Americans. The State presented no evidence to refute this assertion, and the trial court judge concluded that Shealy and Brown were African Americans. Having found that the State used 17 of its 20 peremptories to excuse African Americans, the judge then determined that defendant had established a prima facie case of Batson discrimination. Pursuant to Batson, the State was then required to provide race-neutral reasons for its peremptory challenges. At the conclusion of the hearing, the trial court found that "the challenges were used for neutral reasons[,] not for racial reasons." On appeal in Harris I, this court determined that Shealy's and Brown's race had not been properly established, and that defendant therefore had waived his Batson claim as to these two venire members. Accordingly, in reviewing defendant's Batson claim, we considered only the 15 excused venirepersons that the parties agreed were African Americans. Harris I, 129 Ill. 2d at 172.
Before this court, the State initially argues that defendant's Batson claim is barred by the doctrines of waiver and res judicata. Pointing to our decision in Harris I, the State asserts: "this Court has already decided that Petitioner forfeited his right to challenge the exclusion of jurors Riley [Brown] and Shealy when counsel failed to make an adequate record" of their race. The State contends that our recognition of waiver in Harris I is res judicata as to defendant's claim in the case at bar with regard to Shealy and Brown. We disagree.
As noted, the doctrines of res judicata and waiver are relaxed where the facts relating to the claim do not appear on the face of the original appellate record. Here, as this court noted in Harris I, there was nothing in the record establishing the race of the two venire members in question. Harris I, 129 Ill. 2d at 172. Indeed, it is the absence of facts establishing Shealy's and Brown's race that is at the heart of defendant's claim, which, as noted, is that his counsel was ineffective for failing to establish their race. The facts relating to this claim do not appear on the face of the original appellate record, and res judicata and waiver therefore do not apply in this instance.
Notwithstanding the foregoing, the State points to this court's decision in People v. Evans, 186 Ill. 2d 83 (1999), where a similar post-conviction claim was found to have been waived because the defendant failed to include in the record the race of the witnesses who testified at trial. However, the defendant in Evans did not claim, as does defendant in the instant case, that his counsel was ineffective for failing to establish the witnesses' race. Instead, his post-conviction claim was simply a variation of the fourteenth amendment Batson claim that he had raised on direct appeal. Defendant in the instant case raises a different, sixth amendment claim of ineffective assistance of counsel. Therefore, we find Evans inapposite to the case at bar.
Turning to the merits of defendant's claim, we recall the familiar standard by which we review ineffective assistance of counsel claims. To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under the first prong of this test, the defendant must demonstrate that his counsel's performance was deficient. In other words, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. However, even if it is established that counsel's performance was professionally unreasonable, this, by itself, is insufficient to warrant reversal. The defendant must also meet the second prong of the Strickland test: he must demonstrate that counsel's deficiencies resulted in prejudice. In order to establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendant must satisfy both prongs of the Strickland test in order to succeed on a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530.
In the case at bar, defendant argues that his counsel's failure to establish the race of venirepersons Shealy and Brown at the Batson hearing was professionally unreasonable. Defendant also contends that he suffered prejudice as a result of this allegedly deficient performance. According to defendant, there is a reasonable probability that, had these venirepersons' race been properly established, this court in Harris I would have found the State's reasons for excusing Shealy and Brown to be pretextual and would have reversed defendant's convictions. Alternatively, defendant argues that there is a reasonable probability that this court would have found the trial court judge's findings as to these two venirepersons erroneous and would have remanded for further Batson proceedings as to Shealy and Brown.
In Batson, the Supreme Court held that it was unconstitutional for the prosecution to use a peremptory challenge to exclude a prospective juror solely on the basis of race. The Court in Batson outlined a three-step process for evaluating claims of Batson discrimination. First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Once a prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for excusing the venirepersons in question. Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991); People v. Williams, 164 Ill. 2d 1, 19 (1994). At this stage of the process, the explanation given by the prosecutor need not be persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (1995). A neutral explanation is one based on a reason other than race. Harris II, 164 Ill. 2d at 333. "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, 114 L. Ed. 2d 406, 111 S. Ct. at 1866. Once the prosecutor articulates his reasons for striking the prospective jurors in question, the process moves to the third step: the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866. Because the trial court's decision as to discriminatory intent represents a finding of fact, this determination is entitled to great deference and will be disturbed on appeal only if it is clearly erroneous. Hernandez, 500 U.S. at 364-65, 369, 114 L. Ed. 2d at 409, 412, 111 S. Ct. at 1869, 1871; People v. Wiley, 165 Ill. 2d 259, 274 (1995); Harris II, 164 Ill. 2d at 333. Where more than one explanation has been offered for the exclusion of a venire member, it is sufficient for our purposes if at least one of these explanations is race neutral. People v. Andrews, 155 Ill. 2d 286, 294 (1993); Wiley, 165 Ill. 2d at 278.
In the case at bar, defendant's Batson argument turns on whether the reasons given by the State for excusing Brown and Shealy were pretextual, and on whether the trial court's determination that they were race neutral was clearly erroneous. If these questions are answered in the negative, it follows that defendant suffered no prejudice as a result of counsel's failure to establish Shealy's and Brown's race. Accordingly, defendant's ineffective assistance of counsel claim would fail. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530. For the reasons that follow, we conclude that defendant's Batson claim is without merit.
During voir dire, which was conducted by the trial court judge on April 23 and 24, 1984, Christine Riley (now Brown) stated that she graduated from Richard Vocational High School and had worked for six years as a directory assistance operator for Illinois Bell. With regard to her place of residence, she agreed with the judge when he stated that she lived in "Hyde Park or Kenwood," which are two neighborhoods in the same vicinity on Chicago's South Side. Riley had a friend who was a lawyer. She had never spoken to this friend about her philosophies of law or law enforcement. Riley was separated from her husband, who had done auto body work during the time that they were together. Her nephew had been the victim of a crime. He was stabbed "about three months ago" in front of his house on the South Side of Chicago. Riley said "[i]t was a fight," and she did not know "exactly what happened."
The Batson hearing was conducted by the same judge who presided at trial. At this hearing, Daniel Franks, one of the prosecutors in the case, explained his reasons for excusing Brown. One of these reasons was that she "lived in the Hyde Park area." Franks explained that, based on his experience, it was his belief that people who live in the Hyde Park and University of Chicago area "have a certain attitude about themselves and that community." According to Franks, "[t]hey are more interested in scholastic endeavors and maybe would be more open to new ideas and other types of ideas than people in the rest of the Chicago area." Franks stated that in selecting jurors, he looks for people who "are going to listen to the evidence and make their findings of fact based on the evidence that they get in this courtroom, and not guess or attempt to go beyond the rulings of the court or the jury instructions."
Defendant argues that the reasons given by the prosecutor for excusing Brown "appear either pretextual or unsupported by the record." With regard to Brown's place of residence, defendant notes that Brown never stated that she was a resident of Hyde Park. Instead, she simply answered "yes" when the judge stated: "You live in Hyde Park or Kenwood, did you say?" In addition, defendant emphasizes that Brown graduated from a vocational high school and worked as a directory assistance operator. According to defendant, "there is no evidence she possessed the characteristics of Hyde Parkers which Franks found objectionable."
As defendant correctly notes, Brown did not state that she lived in Hyde Park. Her answer to the judge's question about her place of residence indicated that she lived either in Hyde Park or Kenwood. However, the prosecutor, in explaining why he excluded Brown, did not say that she lived in Hyde Park. His statement was that she "lived in the Hyde Park area." (Emphasis added.) This statement could apply to Brown whether she lived in Hyde Park or Kenwood.
Defendant also contends, as noted, that Brown did not necessarily possess the characteristics that the prosecutor found objectionable in "Hyde Parkers." Defendant raised this identical argument in Harris I regarding a different venire member. There, defendant challenged the prosecutor's explanation that a venire member was excluded in part because of her residence in Hyde Park. According to defendant, the State could not rely on such an explanation unless it could show that Hyde Park residents actually did tend to be scholarly, open to new ideas and not likely to base their findings of fact on evidence, and that the venireperson in question actually possessed these traits. Harris I, 129 Ill. 2d at 176-77. We rejected defendant's argument. We determined in Harris I that the State's failure to show that a group actually possesses the undesirable traits attributed to it by the State, or that an excluded venire member also possesses these traits, is a factor that should be considered by the trial court in evaluating the legitimacy of the State's explanation. However, the State is not required, at the second stage of the Batson process, to make such a showing. At the second stage, "it is not necessary that the State establish the empirical truth of the reason it cites in support of a challenge to a juror." Harris II, 164 Ill. 2d at 338. All that is required of the State at the second stage is that the prosecutor's explanation be facially race-neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.
We conclude that, in the case at bar, the prosecutor's explanation that Brown was excluded because she lived in the Hyde Park area is race-neutral. As noted previously, at the conclusion of the Batson hearing, the trial court judge found that "the challenges were used for neutral reasons[,] not for racial reasons." With regard to Brown, the judge specifically found that the explanation that she lived in "the community of Hyde Park" was race-neutral. We cannot say that the judge's determination here was clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364-65, 369, 114 L. Ed. 2d 395, 409, 111 S. Ct. 1859, 1869, 1871 (1991); Wiley, 165 Ill. 2d at 274; Harris II, 164 Ill. 2d at 333. We therefore reject defendant's Batson claim as to the exclusion of venire member Christine Riley Brown.
During voir dire, Edward Shealy stated that he had a bachelor's degree in music and worked as a docket manager at a Chicago law firm. Shealy had worked at this firm for 3½ years, and prior to this had been a docket manager at a different firm for six years. Shealy told the judge that he had "plenty" of close friends who were attorneys but did not discuss with them their philosophies about law or law enforcement because "[t]hey don't have time." Shealy also indicated that he had a close friend who was a "new recruit" with the Chicago police department. When asked if he ever talked to this friend about his work with the police department, Shealy answered, "None whatsoever." Shealy also stated that he did not talk to this friend about his police training.
At the Batson hearing, prosecutor Daniel Franks offered several explanations for excusing Shealy. One of them was that, while Shealy indicated he had "plenty" of close friends who were attorneys, he insisted that he never talked to any of them about their philosophies of law or law enforcement. Franks stated that this response "did not make sense," and he commented on the demeanor that Shealy displayed while giving it: "I don't think I can do justice in [sic] the way that the juror answered [the judge's] question in terms of his tone of voice and his mannerisms while answering that question." According to Franks, Shealy's answer was "the type of response that did not give me a feeling that I wanted him on that jury."
Defendant argues that this explanation "appears pretextual." He points to three white venire members-Theresa Najdowski, Richard Gray, and Michael Dolan-who had friends or family members who were attorneys *fn1 and who were accepted as jurors, even though they were never asked if they discussed legal matters with the attorney. Defendant notes that the State expressed no concern about this issue with regard to these jurors.
This court has consistently held that where a prosecutor excludes a minority venireperson based on a certain characteristic, but does not reject a white venireperson who shared the same characteristic, "it does not follow that this in itself shows that the prosecutor's explanations were pretextual." People v. Young, 128 Ill. 2d 1, 23 (1989); Harris I, 129 Ill. 2d at 179; see Wiley, 165 Ill. 2d at 282. In Wiley, this court explained:
"The State's purposeful discrimination is not automatically established by the mere coincidence that an excluded juror shared a characteristic with a juror who was not challenged. The excluded juror may possess an additional trait that caused the State to find him unacceptable, while the juror who was not challenged may possess an additional characteristic that prompted the State to find him acceptable to serve as a juror. ([People v.] Ramey, 151 Ill. 2d [498,] 520 [(1972)].) `[A] peremptory challenge is based on a combination of traits, and a juror possessing an unfavorable trait may be accepted while another juror possessing that same negative trait, but also possessing other negative traits, may be challenged.' [People v.] Mitchell, 152 Ill. 2d [274,] at 295 [(1992)]." Wiley, 165 Ill. 2d at 282-83.
In the case at bar, while Shealy and the three white jurors shared the characteristic that they all had close friends or family members who were attorneys, Shealy possessed "an additional trait that caused the State to find him unacceptable." Wiley, 165 Ill. 2d at 283. In this instance, the additional trait was that, unlike Najdowski, Gray or Dolan, Shealy had "plenty" of close friends who were attorneys, yet he insisted that he never talked to them about their philosophies of law or law enforcement. In such a situation, the fact that white jurors also had close friends or family members who were attorneys does not render the State's explanation for excluding Shealy pretextual. People v. Young, 128 Ill. 2d 1, 23 (1989).
As noted, defendant also objects that no one asked the white jurors if they discussed legal matters with their friends or relatives who were attorneys. The voir dire in this case was conducted by the trial court judge. This court has held that "[t]he State's failure to pose additional questions does not lead to the conclusion that the reasons given by the State were a mere pretext for racial discrimination." Wiley, 165 Ill. 2d at 276, citing People v. Kitchen, 159 Ill. 2d 1, 20-21 (1994); Harris II, 164 Ill. 2d at 334.
At the conclusion of the Batson hearing, the judge found that the State had exercised its peremptory challenges for race-neutral reasons and had rebutted defendant's prima facie case. With regard to Shealy, the judge specifically mentioned the explanation that Shealy "works at a law firm" and had "plenty of friends who were lawyers," and concluded that this was an adequate basis for excluding Shealy. In elaborating upon this explanation, the judge opined that because Shealy worked for a large civil law firm, Shealy might take the view that criminal law is not very important.
Defendant challenges the judge's findings on the ground that they do not reflect the reasons actually given by the prosecutor. Defendant argues that Franks' actual reasons for excusing Shealy were not that he worked at a law firm and had friends who were lawyers, or that Shealy thought criminal law was unimportant. Rather, the prosecutor stated that he doubted Shealy's candor when Shealy stated that he never talked to his attorney friends about law enforcement issues or philosophies of the law.
This court has repeatedly held that there is no need for a trial court judge to enter findings with respect to each black member of the venire excluded by the prosecution. People v. Mack, 128 Ill. 2d 231, 245-46 (1989); People v. Fair, 159 Ill. 2d 51, 76 (1994); Harris II, 164 Ill. 2d at 335. In both Mack and Fair, the circuit court judges who conducted the Batson hearings found at the conclusion of the hearings that the explanations offered by the prosecution were race-neutral and sufficient under Batson. In each case, the judge made only this general finding and did not enter specific factual findings for each black venireperson excluded by the State. We held in both Fair and Mack that such a general finding was specific enough for our purposes and that there was no need for the circuit court judge to make specific findings as to the State's explanations for each such peremptory challenge. "In both of those cases, we noted that the record contained the prosecutor's explanations for the separate challenges made to the minority members of the venire, and, in reviewing in each case the trial judge's findings of no discriminatory intent, we considered the explanations provided by the prosecution." Harris II, 164 Ill. 2d at 335. If our review of a Batson claim may proceed in the absence of specific findings by the circuit court as to each minority person challenged by the State, we see no reason why, in a case where the judge does make specific findings, we should be limited only to those findings and prevented from independently considering explanations provided by the State but not expressly ruled on by the judge.
Our decision in People v. Williams, 164 Ill. 2d 1 (1994), is exactly on point as to this issue. Following the trial court judge's decision that defendant had made a prima facie case with regard to the exclusion of Alvin Pettigrew, an African American venireperson, the State in Williams then provided its reasons for exercising a peremptory challenge against Pettigrew. The first two of these reasons were that Pettigrew kept his hat on during voir dire, which the prosecutor said she thought was disrespectful, and that Pettigrew gave short, cryptic answers to the questions asked. The judge mentioned each of these reasons in finding that the State's explanation was legitimate and race-neutral. However, the judge did not mention the third reason provided by the State: "Pettigrew's lack of knowledge concerning the employment of one of his four children, a 24-year-old son who, he said, `[w]orks downtown somewhere.' " Williams, 164 Ill. 2d at 20. Nevertheless, this court proceeded to consider this reason and concluded: [It] "appears to be a legitimate, race-neutral one. The record makes plain that the finding of the circuit court is not clearly erroneous." (Emphasis added.) Williams, 164 Ill. 2d at 21. Just as this court in Williams examined a reason not explicitly ruled upon by the trial judge, so here we have considered the reasons advanced by the prosecutor for excluding Shealy, including those not explicitly ruled upon by the trial judge. Based on our review of these reasons, we cannot say that the judge's determination that they were legitimate and race-neutral is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364-65, 369, 114 L. Ed. 2d 395, 409, 412, 111 S. Ct. 1859, 1869, 1871 (1991); Wiley, 165 Ill. 2d at 274; Harris II, 164 Ill. 2d at 333. We therefore reject defendant's Batson claim as to the exclusion of venire member Edward Shealy.
Because defendant's Batson claims as to Shealy and Brown are meritless, defendant has failed to show that he suffered prejudice as a result of his counsel's failure to establish the race of Shealy and Brown. Even if counsel had established the race of these two venirepersons, defendant has not demonstrated that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. In other words, even if this court had considered the State's exclusion of Shealy and Brown, it is not reasonably probable that the court would have found the State's reasons to be pretextual or that the trial judge's determination that the reasons were race-neutral was clearly erroneous. Defense counsel's failure to establish the race of Shealy and Brown did not constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct at 2069; Morgan, 187 Ill. 2d at 530.
Defendant makes an additional Batson claim regarding defense counsel's failure to establish the race of Christine Riley Brown. According to defendant, Brown is a "Black Latina" and is therefore one of three Hispanic members of the venire, two of whom (Brown and Eva Morales) were peremptorily challenged by the State. Defendant contends that if defense counsel had established Brown's Latina heritage, there is a reasonable probability that in Harris II this court would have found a prima facie case of discrimination against Hispanic venire members. In Harris II we held that defendant failed to establish such a prima facie case, based in part on "the apparent presence of only one Hispanic in the venire." Harris II, 164 Ill. 2d at 344. Defendant argues that this court's decision might have been different if we had known that Riley was also Hispanic and that the State thus had peremptorily challenged two of three Hispanic venire members, or 66%. We disagree.
In order to establish a prima facie case of purposeful discrimination under Batson, a defendant must show that the relevant facts and circumstances "raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In other words, the defendant must show that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721.
This court has enumerated a number of factors that are relevant in determining whether a prima facie case of purposeful discrimination in jury selection has ...