Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. Nos. 10 CR 21499, 10
CR 21500, 10 CR 21501 The Honorable Stanley J. Sacks, Judge
PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion. Justices Pierce and Mason concurred in the
judgment and opinion.
1 Defendant Marcus Austin was convicted by a jury of armed
robbery, aggravated vehicular hijacking, and aggravated
assault. He argues on appeal that (i) after a Batson
challenge, the trial court improperly collapsed the
three-step procedure; (ii) the trial court erred by refusing
to instruct the jury on exclusions to the definition of
"firearm"; (iii) the prosecutor's closing
argument improperly commented on Austin's silence at the
time of his arrest; and (iv) the evidence to sustain his
conviction for armed robbery was insufficient.
2 We affirm: (i) the defense did not establish a prima
facie showing of discrimination resulting from the
State's peremptory challenges of two black venirepersons;
(ii) the trial court's refusal of the defense's
proferred instruction was not error because the jury
instruction as given apprised the jury of the relevant law;
(iii) taken in context and in its entirety, the
prosecutor's closing was nothing more than a summation
and not an improper comment on Austin's right to silence
after his arrest; and (iv) the evidence proved beyond a
reasonable doubt that Austin committed an armed robbery.
4 Jury Selection
5 During voir dire, the State used three peremptory
challenges to exclude prospective jurors. Defense counsel
challenged the State's peremptory removal of two black
venirepersons. In addition, the State excused a third
prospective juror, who was not black. Three black
venirepersons were accepted to serve on the jury.
6 Without the defendant making a prima facie showing
that the prosecution exercised preemptory challenges based on
race, the trial court asked the State to provide race-neutral
reasons for striking the two black jurors. The prosecutor
pointed out that the defense had "not made a prima
facie showing, " to which the court replied,
"I'm not sure they have either, but tell me the
reason." The prosecutor then stated that one of the
excluded venirepersons had a domestic battery conviction that
he did not disclose (the venireperson had been arrested 19
years earlier for domestic battery and the charges were
dropped). The prosecutor told the court the other black
venireperson had "indicated several things that her
brother [(actually, brother-in-law)] was a CPD police officer
that was beat up by [Calumet] Park Police Officers. She says
she reads the Bible. She says she is a youth minister. Those
are all the reasons where the State struck her." The
third juror stricken was not black but had four prior
convictions. When the trial court asked defense counsel if he
had anything else to argue, defense counsel responded
7 The State attempted to put on the record that the defense
did not make a prima facie showing, to which the
trial court replied, "I'm not saying that they did.
We just went a little quicker to get that out of the
way" and "I'm not accusing anybody of anything.
It just makes it quicker to get it done. That's all. The
reasons you gave I think are more than sufficient
easily." The trial court reiterated that one had a prior
conviction he did not disclose and the other "the
situation with the police."
8 Moments later, the trial court stated, "I wasn't
giving the parties a hard time about that race-neutral stuff.
There is no issue in my mind that there was a prima
facie case. I just jumped it forward to save a little
time. There was no issue in my mind of any discrimination
whatsoever. So let's move on."
10 Austin and a codefendant were charged with aggravated
vehicular hijacking of Takiyah Stephenson and armed robbery
of Anthony Younger for taking money and a coat from Younger
by threat or force while carrying a firearm. Before trial,
the two defendants' cases were severed.
11 Around 11 p.m. on November 13, 2010, as Stephenson sat
alone in the front passenger seat of her friend's car, a
man approached and tried to open the locked driver's side
door. The man asked Stephenson for a lighter and came around
to the passenger side where the window was partially down. He
stuck a gun through the opening, pointed it at her head, and
told her to unlock the door. Stephenson grabbed the gun and
"held it up." Another man (codefendant) approached
on the driver's side with a gun, and demanded that
Stephenson unlock the door. She got out and ran. The two men
took off in Stephenson's friend's car.
12 Stephenson testified the gun was steel but she could not
describe the gun's make or whether it was automatic or
semiautomatic. She knew it was a gun because her father was
in the military and she had fired guns. On cross-examination
Stephenson admitted she could not tell the difference between
a pellet gun and other guns.
13 Both Stephenson and the car's owner testified that a
white jacket recovered from the car was not there before it
14 About one-half hour later, Anthony Younger was robbed of
money and a Pelle leather jacket. The day after the robbery,
Younger described his jacket as a "cream-colored leather
Pelle jacket." Younger testified that the jacket
recovered from the car later was not his. Younger described
the robber as black, in his twenties and looking similar to
Younger. He testified the robber had a gun; on
cross-examination, he stated he did not know if the gun was
real or a pellet gun, and could have been a toy. Although
Younger signed a lineup advisory form, he claimed he had not
read it. After signing the form, Younger viewed a lineup but
stated he did not pick anyone out. Younger did not identify
Austin in court. The State impeached Younger with a prior
conviction for a drug offense.
15 Chicago police detective Donald Hill testified that he
interviewed Younger the morning after the robbery. Younger
described his stolen jacket as a Pelle "white leather
coat with studs on it." Hill explained the lineup
advisory form to Younger; both Hill and Younger signed the
form, and Younger identified Austin in the lineup.
16 Chicago police officer Thomas Raines was on patrol on
November 13, driving a marked squad car with Chicago police
officer Matthew Gozdal as passenger. Just before midnight,
they saw a car matching the description of the stolen car and
followed it. The car soon stopped and two men got out and
ran. Austin was on the passenger's side holding a black
gun in his right hand, which looked to Raines like his own
gun. Raines chased Austin, telling him to stop. While
running, Austin pointed a gun at Raines. Raines fired at
Austin eight times. Raines lost sight of him but 30 to 60
seconds later saw Austin in front of a nearby building.
Raines identified Austin on the scene as the same man who had
pointed a gun at him.
17 Gozdal, Raines's partner, testified he saw a black
handgun in Austin's right hand as Austin ran. Gozdal
pursued the driver, and heard three gunshots.
18 Around 11 p.m., Chicago police office Jose Pedraza and his
partner received a "flash message" about a
carjacking, including a description of the car and the
license plate number. They pursued the car, which lost
control and hit a curb. Two men jumped out and ran. Pedraza
joined Raines and Godzal who were chasing Austin. Pedraza saw
a "blue steel handgun, semiautomatic pistol" in
Austin's right hand. Austin turned and pointed the gun at
Raines before Raines fired at Austin. At this point, Pedraza
fell and lost sight of Austin.
19 Officer Brian Lohse arrived after the other officers had
started to run after the car's occupants. Lohse
encountered Austin who put his hands in the air, saying,
"I'm the guy you're looking for." Lohse
handcuffed Austin and turned him over to Pedraza. No gun was
20 The defense ...