Appeal from the Circuit Court of St. Clair County. No. 99-CF-1477. Honorable James K. Donovan, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
Rule 23 order filed: April 16, 2004
Motion to publish granted May 13, 2004.
Marcus Bradley took strong offense at the fact that Dewayne Wilson had beat up Marcus's younger brother. Marcus was heard to say: "That nigger fuck my brother up. It's not going on like that." A few hours later, in the early morning of December 5, 1999, Marcus and his brother Antoine Bradley, accompanied by Diwone Walker, Alexander Matlock, David Taylor, and Terrance Luster, drove to Dewayne Wilson's house, intent on settling the score.
Marcus and Diwone, armed with shotguns, kicked down the front door and entered the Wilson home while Taylor and Luster stood watch with two-way radio sets. When Diwone saw Montez Wilson, Dewayne's brother, he shot him in the back. Montez died from the wound.
Marcus found Tina Jackson, Dewayne's girlfriend and mother to Dewayne's three young children. He jammed the barrel of the shotgun against Tina's head and demanded to know where he could find Dewayne. Apparently, Tina was not forthcoming enough to satisfy Marcus. With the shotgun barrel flush against Tina's head, he pulled the trigger. Marcus blew Tina's brains out. When he returned to his cohorts, waiting for him at the car, he explained why he had decided to kill a defenseless young woman: "I told the bitch to tell me where Wayne was at."
Marcus Bradley, the defendant, stood trial for two counts of first-degree murder. A St. Clair County jury found him guilty on both counts. The foreperson of that jury was a black woman. She was the only person of African-American descent among the 48 prospective jurors who composed the jury venire in this case.
The defendant discharged his appellate counsel, opting for the legal assistance of inmate law advocate Geoffrey W. Freeman. We are presented several questions to decide. The defendant argues that defense counsel was incompetent. This is his argument:
Only one African American was present in a venire of 48, where a random and racially neutral method of selecting the venire would have resulted in about 14 African-American venire members; consequently, defense counsel was ineffective where he failed to understand and meet his burden of presenting a prima facie case regarding the purposeful exclusion of African Americans from the venire from which the defendant's jury was selected.
The manner in which the issue is framed calls for a simple observation from the outset. We cannot imagine how a difference in the racial composition of this defendant's jury could possibly have resulted in an outcome other than the one that this jury reached. We do not think black jurors would have had any more doubt about the defendant's guilt than jurors of a different race. Indeed, the foreperson's race would seem to bear out that conclusion. Had counsel failed to uncover a constitutionally flawed jury panel selection process entitling him to a different panel of jurors, that failure is not of a kind that would alter our confidence in the worth of this jury's verdict. We will nonetheless address the question of whether counsel's performance was substandard.
It is well-settled that the constitution promises that everyone's jury will be drawn from a fair cross-section of the community and that members of a distinctive group in the community will not be systematically excluded from jury service. People v. Hobley, 159 Ill. 2d 272, 304, 637 N.E.2d 992, 1006 (1994) (relying on Taylor v. Louisiana, 419 U.S. 522, 527, 42 L.Ed. 2d 690, 696, 95 S.Ct. 692, 696 (1975)). To establish a prima facie violation of the fair-cross-section requirement, the defendant is required to establish the following:
"(1) the group alleged to be excluded is a 'distinctive' group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process." Hobley, 159 Ill. 2d at 304-05, 637 N.E.2d at 1006 (citing Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 586-87, 99 S.Ct. 664, 668 (1979)).
While the defendant establishes the first prong of the violation by reason of his race (People v. Omar, 281 Ill. App. 3d 407, 414, 666 N.E.2d 383, 388 (1996) (citing Lockhart v. McCree, 476 U.S. 162, 176, 90 L.Ed. 2d 137, 149, 106 S.Ct. 1758, 1766 (1986))), we find that an under-representation of African-American people on one jury panel does not allow for the conclusion that evidence of systematic and purposeful exclusion must exist. There needs to be some showing of under-representation as a pattern, with a particular group underrepresented on jury panels over a significant period of time. As the Illinois Supreme Court succinctly stated in People v. Hobley: "The fair-cross-section requirement deals with the method of selecting jurors from all eligible citizens. Defendant has not shown that the low number of blacks on the ...