-
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of
the opinion to request a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this
matter, it cannot be considered the final decision of the Court. The official
copy of the following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 76907--Agenda 12--September 1995.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FRANK WILLIAMS,
Appellant.
Opinion filed May 31, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant,
Frank Williams, was convicted of first degree murder (Ill. Rev. Stat. 1991,
ch. 38, pars. 9--1(a)(1)), attempted murder (Ill. Rev. Stat. 1991, ch. 38,
par. 8--4), and aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch.
38, par. 12--4.2(a)). Defendant waived a jury for sentencing. The trial court
found defendant eligible for the death penalty based on the statutory
aggravating factor that the murder was committed in a cold, calculated, and
premeditated manner. Ill. Rev. Stat. 1991, ch. 38, par. 9--1(b)(11). The
trial court further found that there were no mitigating factors sufficient to
preclude imposition of the death penalty. Accordingly, the trial court
sentenced defendant to death. The trial court also sentenced defendant to
concurrent 30-year sentences for attempted murder and aggravated battery
with
a firearm. Defendant's death sentence has been stayed pending direct review
by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
For the following reasons, we affirm defendant's convictions and sentences.
FACTS
On January 3, 1991, at approximately 6 p.m., Anthony Cole drove Michelle
Brueckmann, Noel Garcia and Francisco Mashane to Michelle's house at 1312
South Maple in Berwyn, Illinois. Anthony and Michelle went into the house
while Noel and Francisco remained in the car, which was double-parked in
front of Michelle's house. Anthony testified that around 6:30 p.m., he and
Michelle were leaving the house and walking toward the street, when
defendant
emerged from behind a van. Defendant screamed, "I told you I was going to
kill you when I saw you together." Defendant then pointed a .38-caliber
revolver at Anthony and shot him in his left shoulder. Anthony fell to the
ground. Anthony next saw defendant grab Michelle and heard a gunshot.
Anthony
witnessed Michelle fall to the ground. Anthony got up and ran. Defendant
chased Anthony and shot him in the right shoulder. Anthony then ran into a
building for help.
Noel Garcia confirmed Anthony's testimony. Garcia testified that, after
defendant shot Anthony, defendant ran up behind Michelle, grabbed her hair
and put the gun to her head. Defendant then shot Michelle in the head.
Michelle fell to the ground. Next, Garcia saw Anthony get up and start
running. Defendant ran after Anthony and shot him again.
Berwyn police officers Cladio Paolucci and Ronald Volanti responded to
a call of shots fired in the 1300 block of South Maple in Berwyn. When they
arrived at the scene at approximately 6:35 p.m., they saw Michelle lying on
the parkway, bleeding profusely from the head with no apparent signs of life.
The officers also found Anthony lying on the kitchen floor of an apartment
next door. He was bleeding from the chest and shoulder. After talking to
Anthony, Officer Paolucci made a radio dispatch indicating that the
offender's name was Frank Williams, that he was a black male, approximately
6 feet, 2 inches tall, and 180 pounds.
Berwyn police detective Mark Cione obtained an arrest warrant for
defendant that same night. After learning that defendant might be staying at
a house at 5024 South Winchester in Chicago, Detective Cione and other
police
officers proceeded to that address. They arrived at that address around 3
a.m. on January 4, 1991. When they arrived, Detective Cione rang the bell and
spoke with defendant's sister, Kimberly Alexander, who indicated that she had
not seen defendant. She then gave the officers permission to enter the house
to look for defendant. They found defendant in a storage area in the attic.
Detective Cione placed defendant under arrest and handcuffed him. After
taking defendant to the backyard, Detective Cione conducted a patdown search
of defendant and asked him if he had any guns, knives or needles on him.
Defendant responded that he did not, but said that he had a gun in his coat
located in the attic. Detective Cione radioed Officer Paolucci, who was still
in the attic, and told him to look for a jacket with a gun in it. Officer
Paolucci found a jacket lying in the corner of the storage area. A .38-
caliber revolver containing a few live rounds was in the pocket. Defendant
was then taken to the Berwyn police station.
Assistant State's Attorney Kathleen White testified that she arrived at
the Berwyn police station around 5:30 a.m. on January 4, 1991, and spoke
with
defendant. Assistant State's Attorney White advised defendant of his Miranda
rights and he indicated that he understood them. Defendant agreed to give an
oral statement but he refused to sign anything. Defendant discussed what had
happened on January 3, 1991. Defendant stated that he became upset when
he
saw his girlfriend Michelle with his friend Anthony at a shopping mall during
the afternoon of January 3, 1991. Later that evening, defendant took a loaded
.38-caliber revolver from his dresser and drove to Michelle's house.
Defendant stated that he parked the car around the corner from Michelle's
house and stood behind a tree and waited for Michelle to come out of the
house. When Michelle and Anthony came out of the house, defendant emerged
from behind the tree with a loaded gun in his hand. Defendant walked directly
up to Anthony and shot him in the shoulder. Defendant then shot Michelle in
the head. Anthony suddenly got up, and defendant shot him again in the
shoulder. Defendant then fled.
Anthony Cole testified that he and defendant had known each other for
about 15 years. According to Anthony, defendant and Michelle had been
engaged
but had broken off their engagement in the summer of 1990. Anthony had
dated
Michelle for about one month before Michelle was shot. Anthony testified
about a prior incident in which defendant threatened to kill Michelle and
Anthony if he ever saw them together. On January 2, 1991, Anthony,
defendant
and Michelle were riding in Anthony's car. Defendant suddenly jumped over
the
seat with a large butcher knife and attempted to stab Anthony. Anthony was
cut on his hand. Anthony and defendant jumped out of the car. While chasing
Anthony around the car, defendant said, "I told you if I saw you together I
would kill you." After both defendant and Anthony stopped running around the
car, defendant went to open the passenger door. Anthony then ran to the
police station for help. When he returned, Michelle came out of defendant's
house crying hysterically with a cut on her hand. Anthony took Michelle to
the hospital where she received stitches in her hand.
The State also presented the testimony of Donald Smith, a firearms
examiner from the Illinois State Police. Smith examined the .38-caliber
revolver recovered from defendant's jacket and the bullet that had been
surgically removed from Cole. Smith concluded that the bullet could only have
been fired from the gun recovered. Smith also testified that, from the
single-action position, with the hammer cocked, the gun required 5½ pounds
of
pressure on the trigger in order to fire. In the double-action position, with
the hammer at rest, the gun required 13½ pounds of pressure on the trigger in
order to fire.
As a final matter, the State presented the testimony of Assistant
Medical Examiner Nancy Jones, who performed an autopsy on the body of
Michelle. Jones testified that Michelle died as a result of a gunshot wound
to her head. The bullet went through Michelle's head. The entrance wound
measured about one-half inch in diameter and showed evidence of being a
near
contact range wound, meaning that the muzzle of the gun was very close to the
body at the time the weapon was fired. This was further evidenced by charring
or burning around the entrance wound. Jones determined that the muzzle of
the
gun was within an inch or less of Michelle's head when the gun was fired.
Jones further observed a "graze" gunshot wound on the back of Michelle's left
hand, indicating that Michelle's hand was in very close proximity to the
muzzle of the weapon at the time the weapon was fired. Michelle's right hand
also had gunpowder on the back of the thumb and wrist, indicating its close
proximity to the weapon when fired.
After the State rested, defendant presented his case. Defendant's friend
Darrio Ramirez testified that in December of 1990 defendant and Michelle were
engaged to be married and he saw them together. Ramirez testified that he was
with defendant at a shopping mall on January 3, 1991, but that he did not see
Michelle and Anthony. Ramirez also testified that he saw Anthony at a
laundromat the day after Anthony was released from the hospital. He asked
Anthony what had happened the night of the shooting. Anthony told Ramirez
that he tried to grab defendant's gun and it went off, with the bullet
striking Michelle.
Defendant testified on his own behalf. At the outset of his testimony,
defendant acknowledged that he was convicted of aggravated battery in 1986.
Defendant then went on to explain that he, Michelle, Anthony, Darrio, Noel
and Francisco were all "best of friends." He and Michelle became engaged in
July of 1988, but their engagement ended in September of 1990. After the
engagement was over, they continued to see one another. Defendant stated
that
around Christmas of 1990, he and Michelle exchanged gifts. He contended
that
he never really considered their relationship to be over.
Defendant next described the incidents that occurred on January 2 and 3,
1991. On January 2, 1991, Anthony went to defendant's house with Michelle
in
the car. Anthony approached defendant and told him that defendant's
relationship with Michelle was over and Anthony was the "new guy in town."
Michelle got out of the car and stood next to Anthony, telling Anthony to let
it be. Anthony replied, "No. I'm going to show him what's up." Anthony then
removed a switchblade or pocket knife from his pocket and pointed it at
defendant. Defendant slapped the knife out of the way. When defendant
slapped
the knife away, it cut the palm of defendant's hand and then struck Michelle,
cutting her left hand. Defendant and Michelle went into the house and
defendant gave her a towel to wrap up her bleeding hand. The police came to
defendant's house but did not arrest defendant. Michelle subsequently left
with Anthony. Defendant denied ever pulling a butcher knife on Anthony and
Michelle.
The next day, defendant went to the North Riverside shopping mall with
Darrio Ramirez and Darrio's girlfriend, Christina Rodriguez. Defendant
claimed that he did not see Michelle or Anthony at the mall that day. When
defendant arrived home, his brother told him that Anthony had been there
looking for him and that Anthony had a gun. Defendant then went to look for
Anthony. Defendant took his gun with him "just in case" Anthony had a gun.
Defendant, however, was unable to find Anthony. Defendant subsequently
went
to Michelle's house to pick up some of his belongings. While passing a police
station, he removed his gun from the passenger seat of his car and he put it
in the pocket of his jacket. When defendant arrived at Michelle's house, he
saw her and Anthony leaving her house. Defendant approached Michelle and
Michelle called him aside to talk to him. As he and Michelle were talking,
Anthony approached them. Anthony put his hand inside his jacket and said,
"What's up?" Defendant put his hand in his pocket. Defendant did not threaten
Anthony or Michelle. Defendant, however, was concerned that Anthony was
going
to pull out a gun, so defendant pulled out his gun and pointed it at Anthony.
Although defendant cocked the gun, he claimed that he did not have his finger
on the trigger. Defendant told Anthony, "Just let it be. Let it be." Suddenly
Anthony swung his arm toward defendant and hit the gun. The gun discharged
and a bullet struck Michelle. Michelle fell to the ground and defendant said
to Anthony, "Look what you did." Anthony replied, "I'm out of here. "
Defendant responded, "Tony, don't run," and fired at Anthony. Anthony kept
running, and defendant fired at him again.
Defendant then left and drove to his sister Kimberly Alexander's house.
At some point, defendant took the bullets out of the gun. He threw three
empty bullet casings into the street and left the other three in his jacket
pocket. He parked the car at his sister's house, took off his jacket, and put
the gun in the right hand pocket of the jacket. He laid the jacket on the
front seat and got out of the car. Defendant then went up to the attic and
cried. Around 3 a.m., the attic door flew open and several police officers
entered the attic with their guns drawn. They told defendant to "freeze." The
officers handcuffed his hands behind his back and led him down the stairs to
the backyard. While in the backyard, Detective Cione asked defendant whether
he had any needles, knives or guns on him. Defendant said "No." Detective
Cione then searched him. According to defendant, he never told Detective
Cione where the jacket and gun were located.
Defendant stated that he was then taken to the Berwyn police station,
where he was fingerprinted and photographed. Defendant stated that neither
Detective Cione nor Assistant State's Attorney White read him his Miranda
rights. Detective Cione asked defendant about the shooting several times, and
defendant refused to talk about it. Defendant denied making any statement to
Detective Cione or to Assistant State's Attorney White.
Defendant concluded his testimony by stating that on the day of the
shooting, he still loved Michelle. He claimed that it was not his intent to
confront Michelle and Anthony or to shoot anyone. Defendant testified that
when Michelle was shot it was a "complete accident." After Michelle was shot,
defendant shot twice at Anthony because he did not want him to run away.
After the defense rested, the State presented three rebuttal witnesses.
First, Detective Cione discussed defendant's conversation with him at the
Berwyn police station. After advising defendant of his Miranda rights,
Detective Cione conducted an interview with defendant which occurred at 4
a.m. and lasted approximately one hour. Defendant told Detective Cione that
he was standing behind a tree on January 3, 1991, as he saw Michelle and
Anthony walk out of Michelle's house. He approached them and fired one shot
at Anthony. Defendant stated that he then pointed the gun at Michelle's head
and fired one shot. Defendant also fired a second shot at Anthony. Next,
Assistant State's Attorney White testified that defendant never indicated to
her that Anthony had hit defendant's hand, causing the gun to discharge
accidentally and strike Michelle. Finally, Noel Garcia testified that he did
not see Anthony strike defendant's hand, causing the gun to discharge against
Michelle's head. Following the testimony of these rebuttal witnesses, the
State read defendant's 1986 aggravated battery conviction into the record.
At the close of the evidence and arguments, the jury returned verdicts
finding defendant guilty of the first degree murder of Michelle, and of the
attempted murder and aggravated battery with a firearm of Anthony. Having
waived a sentencing jury before trial, defendant was sentenced by the trial
judge. The trial judge found defendant eligible for the death penalty based
upon the statutory aggravating factor that the murder had been committed in
a cold, calculated, and premeditated manner pursuant to a preconceived plan
to take human life by unlawful means, and that defendant's conduct created a
reasonable expectation that the death of a human being would result
therefrom. Ill. Rev. Stat. 1991, ch. 38, par. 9--1(b)(11).
At the aggravation-mitigation phase of the death penalty hearing, the
State presented the following evidence in aggravation. Noel Garcia recounted
an incident in August of 1990. Following Garcia's date with Michelle, Garcia
was driving around with defendant, Anthony and Darrio Ramirez. After
dropping
off Anthony, they drove to a dead-end street and drank beer for awhile.
Defendant suddenly began to beat Garcia. Defendant tied him up, kicked him
and punched him in the face. Defendant then broke a bottle and held it to
Garcia's neck and said he was going to kill him because he had been with
Michelle. Just as defendant was about to poke the broken bottle into Garcia's
neck, Darrio stopped him. This incident left Garcia with a fractured nose.
The State next called Chicago police detective James Cornelison.
Detective Cornelison testified that on August 22, 1985, defendant was
arrested for the beating of Hermilio Allencastro. The victim was in a coma
for approximately two weeks as a result of the beating. Defendant signed a
written statement regarding this incident. In defendant's statement, he
admitted punching the victim approximately 20 times in the chest and head,
and stomping on the victim's head about seven times. Defendant pled guilty to
aggravated battery as a result of this incident and was sentenced to five
years' imprisonment.
Dawn Juarez, Michelle's best friend, next testified in aggravation.
Juarez testified that on October 4, 1990, she received a phone call from
Michelle. Michelle indicated that she was having problems with defendant.
When Juarez saw Michelle that day she had a black eye. Michelle explained
that defendant had taken her to a forest preserve, pulled her out of the car
and punched her. Defendant then put a gun to Michelle's head. Defendant told
her the gun had one bullet in it. Defendant pulled the trigger, but the gun
did not fire. Defendant then told Michelle that she was lucky that she did
not have to die that day, but if he could not have her then no one else would
have her. Juarez stated that she had previously seen bruises or marks on
Michelle's body. Michelle told her that these bruises and marks had been
caused by defendant when she had tried to break up with him.
Finally, the State presented the testimony of Michelle's mother, Cheryl
Brueckmann. Brueckmann testified about a conversation she and Michelle had
in
September of 1990. Michelle told her that she was afraid of defendant because
he had threatened to kill her. Brueckmann had previously noticed bruises and
marks including a black eye on Michelle. During their conversation, Michelle
also told her mother that all of the bruises she had seen previously had been
caused by defendant.
The State concluded by offering into evidence a certified statement of
defendant's 1986 conviction of aggravated battery, a written statement signed
by defendant in that case, and photographs of the victim of that incident.
Defendant called a number of witnesses in mitigation. Defendant first
called Dr. George Savarese, a licensed clinical social worker. Dr. Savarese
testified about his psychosocial evaluation of defendant. A psychosocial
evaluation is an attempt to understand the developmental history of an
individual. Dr. Savarese testified that defendant's early childhood
represents a very dysfunctional emotional development because there was poor
attachment and bonding to his mother. Other social factors noted by Dr.
Savarese included the lack of a father figure in defendant's life,
defendant's bi-racial family, and the racial abuse he faced in his
neighborhood which was primarily Caucasian. Dr. Savarese believed that the
racial antagonism defendant faced while growing up resulted in low self-
esteem and a need for belonging. Defendant also possessed a deep fear of
rejection and abandonment, which became exaggerated in his relationship with
Michelle. Dr. Savarese testified that defendant perceived the loss of
Michelle to Anthony as rejection and betrayal of best friends. Dr. Savarese
concluded that the murder of Michelle and attempted murder of Anthony
resulted from an explosion of underlying rage.
Defendant's neighbor, Christine Hernandez, testified that she had known
defendant since he was an infant. He was friendly and helpful and would often
do odd jobs for her. Hernandez testified that she never had any problems with
how defendant treated her or her family.
Yolanda Nerie, who had known defendant for eight or nine years, also
testified in mitigation. Nerie stated that, during the year she had dated
defendant, he was never violent toward her. Defendant never had any hard
feelings about their relationship ending, and they remained friends after
they had stopped dating.
Next, members of defendant's family testified in mitigation. Defendant's
two sisters, Gwendolyn Webber and Kimberly Alexander, testified that
defendant was not treated well by people in his neighborhood because he was
African-American. They further pointed out that defendant had a very good
relationship with their children and with Michelle. Webber specifically
stated that defendant never acted violently against Michelle. Defendant's
mother, Janie Webber, confirmed that defendant and Michelle seemed to love
each other. Moreover, they continued to see each other during the holidays in
1990. Defendant's mother also stated that, although defendant was a very
loving son, she was not a very loving mother.
Finally, defendant elected to speak in allocution. Defendant apologized
to Michelle's family for the "terrible accident," apologized to his own
family, and concluded, "I am sorry. I wish it never happened." He also
expressed his continued love for Michelle.
After considering evidence from both sides, the trial court found that
there were no mitigating factors sufficient to preclude imposition of a death
sentence. Accordingly, the trial court sentenced defendant to death for the
murder of Michelle. The trial court also sentenced defendant to concurrent
30-year sentences for the attempted murder and aggravated battery with a
firearm convictions. Defendant now appeals his convictions and death
sentence.
I. JURY SELECTION
A.
Challenge for Cause
Defendant first argues that the trial judge committed reversible error
by refusing to excuse for cause venire member Mark Posternack. Defendant
claims that venireman Posternack should have been removed for cause
because
of his lack of impartiality. Defendant contends that Posternack's voir dire
responses indicate that he had a bias against guns. Because this case
involved the use of a firearm, defendant urges, Posternack could not be
impartial. Defendant also contends that Posternack should have been removed
for cause because he expressed self-doubt concerning his ability to be
impartial.
The voir dire of Posternack was conducted by the trial judge.
Defendant's argument is based on the following exchange between the trial
judge and Posternack:
"Q. Can you still be fair and impartial if picked to serve as
a juror?
A. No.
Q. What do you mean, no?
A. I'm totally against guns. I hear about this all the time
and I couldn't be fair if somebody had one.
Q. You're totally against guns. So what?
A. I don't think one should carry guns unless a police
officer.
Q. You haven't heard any facts yet. How can you assume that
somebody was carrying a gun?
A. I just don't think anyone should carry a gun unless they're
a police officer.
Q. If you were picked to serve on this jury would you be fair
and impartial?
A. I'd do my best.
Q. What do you mean, your best?
A. I would hear it out.
* * *
Q. Do you know of any reason why you cannot be fair and
impartial if picked to serve in this case?
A. As I stated before.
Q. What is that?
A. Gun control, otherwise, yes.
Q. I don't know what you mean, gun control?
A. Like I said, I'm against guns, any crime with guns.
Q. In other words, if somebody--if they say somebody used a
gun it's automatically a guilty, is that right?
A. Well, not automatically guilty but I would say I would have
a reasonable doubt why he was carrying a gun. Before, I would say
he was guilty, I'd like to hear it out."
The determination of whether to excuse a potential juror for cause rests
within the sound discretion of the trial judge. People v. Seuffer, 144 Ill.
2d 482, 502 (1991); People v. Hyche, 77 Ill. 2d 229, 239 (1979). In reviewing
the trial judge's determination, the entire voir dire examination of the
potential juror should be considered, as opposed to selected responses.
People v. Peeples, 155 Ill. 2d 422, 462-63 (1993). Because the trial judge is
in the best position to observe the potential juror's demeanor and ascertain
the meaning of his or her remarks, the trial judge's determination will not
be disturbed on review unless it is against the manifest weight of the
evidence. Peeples, 155 Ill. 2d at 463, 466; People v. Pasch, 152 Ill. 2d 133,
168-69 (1992).
A venireperson should be removed for cause if his or her state of mind
is such that one of the parties will not receive a fair and impartial trial
with that venireperson as a juror. See Peeples, 155 Ill. 2d at 463; People v.
Cole, 54 Ill. 2d 401, 413 (1973). Simply giving an equivocal response,
however, will not require that a venireperson be excused for cause. See
People v. Hobley, 159 Ill. 2d 272, 297 (1994); Pasch, 152 Ill. 2d at 169
(potential jurors did have some difficulty with insanity defense; however,
they indicated they could consider the evidence as presented at trial and
then make a determination on defendant's sanity); People v. Johnson, 149 Ill.
2d 118, 138 (1992) (absolute certainty is not required in a potential juror's
responses). Rather, whether a venireperson can be impartial should be
determined from the venireperson's entire voir dire examination.
In this case, when the entire voir dire examination of Posternack is
reviewed, it is apparent that Posternack would base his decision on the law
and the evidence regardless of his personal feelings. This is evidenced by
the following statements by Posternack in response to the trial judge's
questions:
"Q. Will you follow the law as propounded to you by the Court
regardless of your own personal feelings?
A. Yes.
* * *
Q. So before you made up your mind you would wait until you
heard the whole situation, both sides?
A. Yes.
Q. Right, sir?
A. Yes.
Q. Now, if the People prove the defendant guilty beyond a
reasonable doubt will you return a verdict of guilty?
A. Yes.
Q. If the People fail to prove the defendant guilty beyond a
reasonable doubt will you return a verdict of not guilty?
A. Yes.
Q. You understand that you are to consider the testimony of a
police officer in the same light as that of an ordinary citizen and
give it no greater weight just because it comes from a police
officer?
A. Yes.
Q. You also understand that the defendant is presumed to be
innocent and does not have to offer any evidence and this
presumption remains with him throughout the trial and is not
overcome unless after your consideration of all the evidence you
find that the State has proved the defendant guilty beyond a
reasonable doubt?
A. Yes.
Q. You also understand that the defendant does not have to
testify and if he fails to testify you can draw no inference from
that?
A. Yes."
It is clear that Posternack's complete voir dire examination revealed
him to be a person who possessed the essential qualifications to be a fair
and impartial juror. See People v. Zehr, 103 Ill. 2d 472, 477 (1984). We
therefore find that the trial judge's denial of defendant's motion to excuse
Posternack for cause was not against the manifest weight of the evidence. We
note that defendant also contends that he was prejudiced because, as a result
of the trial judge's refusal to remove Posternack for cause, he was forced to
exercise a peremptory challenge against Posternack and was thereby later
forced to accept an objectionable juror (Kenneth Vallon) after he had
exhausted all of his peremptory challenges. In light of our holding that the
trial judge properly refused to remove Posternack for cause, however,
defendant's argument in this respect fails.
B.
Batson Claim
Defendant next argues that the trial judge erred in determining that
defendant had failed to establish a prima facie case of purposeful
discrimination in the prosecutor's use of a peremptory challenge under Batson
v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
The record demonstrates that 52 venirepersons were questioned during
voir dire. The trial judge allowed each side 20 peremptory challenges during
jury selection. The defense exercised all 20 of its challenges, the trial
judge excused 14 potential jurors for cause, and the prosecution exercised
two peremptory challenges against David Price and Harold Martin. The record
suggests that Price was Caucasian and Martin was African-American. After the
prosecution exercised a peremptory challenge to excuse Martin, the trial
judge questioned John Sterba, a Caucasian venireman. The trial judge then
asked if defense counsel and the State would accept the panel. At this time,
defense counsel raised a Batson objection to the State's challenge of Martin
and requested that the State offer a race-neutral explanation for excusing
Martin.
In response, the prosecutor pointed out that defense counsel was asking
the court to find a prima facie case of racial discrimination. The prosecutor
noted that several other African-American venirepersons had been questioned
and that Martin was the only African-American venireperson against whom the
prosecution had exercised a peremptory challenge. The prosecutor then stated
to the court:
"You saw he was a black man with red hair. You heard the answers to
his questions, that he was not satisfied. I don't think we have to
at this time come forward with any reasons why this was--this man
was excluded. *** It is obvious why this person was excluded."
Defense counsel responded by attempting to compare Martin to Sterba,
who
was also not satisfied with the outcome of a criminal case. The State
informed the trial judge that, at that point in the proceeding, the trial
judge only had to determine whether a prima facie case had been established
and did not need to compare Martin with Sterba. The trial judge agreed that
defense counsel should only focus on Martin. After hearing further arguments,
the trial judge ruled that defendant had not established a prima facie case
of racial discrimination. It is this finding by the trial judge that
defendant now challenges.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712
(1986), the United States Supreme Court established a three-step process for
evaluating a claim that the State has exercised its peremptory challenges in
a racially discriminatory manner. First, the defendant must establish a prima
facie case of purposeful discrimination in the selection of the jury. Once
the defendant establishes a prima facie case, the burden shifts to the State
to articulate a race-neutral reason for challenging each of the venirepersons
in question. Finally, the trial judge must consider those explanations and
determine whether the defendant has met his burden of establishing
purposeful
discrimination. Batson, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct.
at 1723-24.
A prima facie showing of discrimination under Batson requires the
defendant to demonstrate that relevant circumstances in the case raise an
inference that the prosecutor exercised peremptory challenges to remove
venirepersons based upon their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at
87-88, 106 S. Ct. at 1723; People v. Wiley, 156 Ill. 2d 464, 473 (1993). In
determining whether a prima facie case of discriminatory jury selection has
been established, the following relevant circumstances should be considered:
(1) racial identity between the defendant and the excluded venirepersons; (2)
a pattern of strikes against African-American venirepersons; (3) a
disproportionate use of peremptory challenges against African-American
venirepersons; (4) the level of African-American representation in the venire
as compared to the jury: (5) the prosecutor's questions and statements during
voir dire examination and while exercising peremptory challenges; (6) whether
the excluded African-American venirepersons were a heterogeneous group
sharing race as their only common characteristic; and (7) the race of the
defendant, victim, and witnesses. People v. Hudson, 157 Ill. 2d 401, 426
(1993); Wiley, 156 Ill. 2d at 473-74; People v. Andrews, 146 Ill. 2d 413,
425-26 (1992). A trial judge's determination of whether a prima facie case
has been shown will not be overturned unless it is against the manifest
weight of the evidence. Hudson, 157 Ill. 2d at 426; Peeples, 155 Ill. 2d at
469.
Our review of the evidence in light of all the relevant circumstances
reveals that a prima facie case of discrimination under Batson was not
established. The trial court's ruling was not against the manifest weight of
the evidence.
The first relevant circumstance is whether defendant and the excluded
venireperson share the same race. Here, defendant and Martin are both
African-Americans. Although this circumstance is relevant, it is not
dispositive in determining whether a prima facie case exists. See Peeples,
155 Ill. 2d at 470.
We next consider whether the evidence in this case establishes a pattern
of strikes against African-American venirepersons by the prosecution. It has
previously been held that a pattern of strikes is created "where the strikes
affect members of a certain race to such a degree or with such a lack of
apparent nonracial motivation that it suggests the possibility of racial
motivation." Andrews, 146 Ill. 2d at 429. The record shows that the
prosecution exercised one of two peremptory challenges against African-
American venirepersons. We acknowledge that the exclusion of even one
venireperson because of race is unconstitutional and violates Batson
regardless of the number of African-Americans not excluded. Peeples, 155 Ill.
2d at 468; Andrews, 146 Ill. 2d at 434. Nevertheless, we find that the
State's exercise of one peremptory challenge to exclude an African-American
venireperson is not strongly suggestive of racial motivation and does not
constitute a pattern of strikes against African-American venirepersons. See
Peeples, 155 Ill. 2d at 470 (State's use of one out of eight peremptory
challenges to exclude an African-American venireperson does not constitute a
pattern of strikes against African-Americans). We further note that before
exercising this challenge, the prosecutor challenged one Caucasian and
accepted one African-American venireperson. Consequently, there appears no
discernable racial pattern to the State's exercise of its peremptory
challenges.
The next factor to be considered is whether there is a disproportionate
use of peremptory challenges by the prosecution against African-American
venirepersons. Comparing the number of African-American and non-African-
American venirepersons stricken by the State reveals whether the State used
a disproportionate number of peremptory challenges to exclude African-
Americans. Andrews, 146 Ill. 2d at 430. Here, the prosecutor challenged only
one African-American venireperson and one Caucasian venireperson. This does
not demonstrate a disproportionate use of peremptory challenges against
African-Americans.
Next, we consider the level of African-American representation in the
venire as compared to the jury. The record indicates that there was one
African-American juror. On a jury of 12 persons where one is African-
American, the level of African-American representation is 8.3%. Nevertheless,
we cannot compare the level of African-American representation on the jury
with that of the venire because the record does not indicate the number of
African-Americans in the venire. See Peeples, 155 Ill. 2d at 472. The absence
of evidence as to the level of African-American representation in the venire
renders this factor neutral in the determination of a prima facie case. See
Andrews, 146 Ill. 2d at 435.
The next relevant circumstance concerns the prosecutor's questions and
statements during voir dire examination and while exercising peremptory
challenges. In this case, the trial judge alone conducted voir dire and no
statements were made by the prosecution when it exercised its peremptory
challenge against Martin. However, in response to defendant's Batson
objection, the prosecution stated that Martin "was a black man with red
hair." Defendant insists that this statement evidences discriminatory intent.
We disagree. This statement was merely descriptive and reminded the trial
judge that defendant's Batson objection regarded Martin and not Sterba,
whose
voir dire examination immediately preceded defendant's Batson objection.
Another relevant circumstance in determining if a prima facie case of
discrimination has been established is whether the excluded African-American
venirepersons were a heterogeneous group sharing race as their only common
characteristic. Here, the only excluded African-American venireperson was
Martin. Because Martin was the only African-American venireperson excluded
by
the State, there is no excluded "group" within which to compare any nonracial
characteristics. Pasch, 152 Ill. 2d at 164. Defendant however claims that
also relevant to this factor is whether the excluded African-American
venirepersons share any characteristic with the non-African-American jurors.
See Andrews, 146 Ill. 2d at 431-32. Although we have considered the nonracial
characteristics common to stricken African-American venirepersons and non-
African-American jurors in assessing heterogeneity, we find that this
consideration is not mandatory in every case. See People v. Henderson, 142
Ill. 2d 258, 290 (1990) (it is not the role of the court to search for
possible similarities between stricken black and accepted white
venirepersons). Here, when defense counsel attempted to compare Martin with
Sterba, the Caucasian juror who also was not satisfied with the outcome of a
criminal case, the trial judge instructed defense counsel to focus on Martin.
Based on the foregoing, we find that this comparison was not required at this
stage of the proceedings.
The final factor relevant to establishing a prima facie case of
purposeful discrimination is the race of the defendant, the victim and the
witnesses. We have held that the racial characteristics of a crime are
important factors. Andrews, 146 Ill. 2d at 433. Although the record does not
disclose the race of the witnesses, it does reveal that defendant is African-
American and the victim was Caucasian. This factor may suggest an inference
of purposeful discrimination. See Andrews, 146 Ill. 2d at 433.
After considering all the relevant factors in this case, we find that a
prima facie case of discrimination under Batson was not established. The only
factors suggesting purposeful discrimination include the racial identity
between defendant and the excluded venireperson and the interracial nature of
the crime. All other factors tend to refute an inference of discrimination or
weigh neutrally in the balance. Therefore, we conclude that the trial judge's
determination that defendant failed to establish a prima facie case was not
against the manifest weight of the evidence.
In closing, we note that the dissent asserts that the State offered
explanations in response to the defendant's Batson claim so as to render the
issue of whether the defendant had established a prima facie case of racial
discrimination moot. This interpretation is belied by the record. As
discussed above, the State's comments were merely descriptive. Moreover, the
State informed the trial court that it was premature to give any explanation
for excluding Martin. The trial judge ruled only on the prima facie issue,
which is the first step of Batson. Given that the State did not offer any
explanation for its peremptory challenge of Martin and that the trial judge
did not proceed past the prima facie determination, we find that the prima
facie issue is not moot.
II. TRIAL ISSUES
A.
Exclusion of Evidence
Defendant claims that the trial judge erred in denying his motion to
suppress his statement to the police, given at his sister's house, regarding
the location of the gun because he had not yet received Miranda warnings at
that time. Defendant contends that the gun and the evidence obtained from
the
gun should also have been suppressed because it was recovered as a result of
the statement.
At the hearing on defendant's motion to suppress, Detective Cione
testified that on the morning of January 4, 1991, defendant was discovered in
the attic of his sister's building. Defendant's sister, her husband and their
four children lived on the first floor, while the building's landlord and his
family lived on the second floor. After defendant was located in the attic,
defendant was placed under arrest pursuant to a warrant. Defendant was then
handcuffed and taken from the attic to the backyard, where Detective Cione
conducted a patdown search for weapons. Detective Cione asked defendant
whether he had any weapons, knives or needles on him. Detective Cione did
not
give defendant Miranda warnings prior to asking this question. Defendant
responded that he did not have a weapon on him, but that a gun was in his
coat in the attic. No other questions were asked of defendant at this time.
At the conclusion of the suppression hearing, the trial judge ruled that
defendant's statement and the gun were admissible pursuant to the public
safety exception enunciated in New York v. Quarles, 467 U.S. 649, 81 L. Ed.
2d 550, 104 S. Ct. 2626 (1984). In Quarles, police officers chased a
suspected rapist who was armed with a gun into a supermarket. The officers
apprehended the defendant and handcuffed him. During a patdown search,
the
officer discovered that the defendant was wearing an empty shoulder holster.
The officer asked the defendant about the location of the gun. The defendant
nodded toward some empty cartons and stated, "The gun is over there." When
the defendant made this statement, he had not yet been given Miranda
warnings.
The United States Supreme Court nevertheless held that defendant's
statement and the gun were admissible. The Court reached this holding by
creating a public safety exception to the requirement of Miranda warnings
prior to custodial interrogation. The Court established this limited
exception because the presence of a gun in a public place posed a danger to
public safety. The Court noted that an accomplice might make use of the gun
or a customer or employee might later come upon it. Quarles, 467 U.S. at 657,
81 L. Ed. 2d at 558, 104 S. Ct. at 2632. The Court reasoned that requiring
the police to give the defendant Miranda warnings before asking the
whereabouts of the gun might have deterred the defendant from responding
and
put the public at risk. Quarles, 467 U.S. at 657, 81 L. Ed. 2d at 558, 104 S.
Ct. at 2632. Therefore, the Court concluded that "the need for answers to
questions in a situation posing a threat to the public safety outweighs the
need for the prophylactic rule protecting the Fifth Amendment's privilege
against self-incrimination." Quarles, 467 U.S. at 657, 81 L. Ed. 2d at 558,
104 S. Ct. at 2632.
The public safety exception of Quarles applies to this case. Here,
defendant was entitled to Miranda warnings because he was in custody and
the
police officer interrogated him. As noted in Quarles, police faced with an
immediate threat to public safety may ask questions necessary to secure the
safety of the public or themselves prior to issuing Miranda warnings.
Quarles, 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626. The record reveals
that the loaded gun was in the attic of a house occupied by two families.
There were also police officers on the scene. These facts demonstrate that
the concealed gun posed a threat to the safety of those individuals living in
the building and the police officers on the scene. Under these circumstances,
it is reasonable to find that Detective Cione was attempting to secure the
safety of himself, his fellow officers, and innocent persons in the area from
immediate danger when he asked defendant whether he was carrying any
weapons.
Detective Cione did not ask defendant any other questions at that time. This
indicates that Detective Cione's question was not designed to elicit
testimonial evidence from defendant. Based upon the foregoing, we find that
the public safety exception to Miranda warnings applies to defendant's
statement. The trial judge did not err in denying defendant's motion to
suppress this statement and the gun.
B.
Improper Questioning by Trial Judge
Defendant charges that the trial judge acted improperly in asking him
certain questions about the incident on January 2, 1991. Defendant assigns
error to the following colloquy at the end of defense counsel's re-direct
examination:
"THE COURT: For my own clarification, Mr. Williams, did you
have the gun in your pocket or in your hand when he swung at you
with the knife?
DEFENSE COUNSEL: Objection, Your Honor. There is no testimony
about him having a knife when he had the gun.
THE COURT: I'm talking about Cole with the knife.
DEFENSE COUNSEL: That was the day before. That was a different
incident.
THE COURT: That's what I'm talking about. I just want to know.
DEFENSE COUNSEL: I object to the Court asking any questions
that's confusing to me.
THE COURT: Sir, you stated that you had a gun in your pocket?
DEFENDANT: Yes, sir.
THE COURT: You also stated that Anthony Cole had a knife in
his hand?
DEFENDANT: That wasn't on the same day, sir.
THE COURT: You didn't have the gun in your pocket on that
date?
DEFENDANT: No, sir."
Defendant argues that the foregoing questions denied him a fair trial
because they impugned his credibility. Defendant points out that there was no
evidence that a gun had been involved in the January 2, 1991, incident. By
asking defendant where he carried the gun, defendant contends, the trial
judge implied that defendant's testimony was not truthful. In addition,
defendant claims that the trial judge's questions also implied that the judge
believed defendant to be a very dangerous individual who was habitually
armed
with a handgun. Defendant insists that he was prejudiced by these questions
and that he is therefore entitled to a new trial.
It is well established that a trial judge has the right to question
witnesses in order to elicit the truth or to clarify issues which seem
obscure. People v. Nevitt, 135 Ill. 2d 423, 456 (1990); People v. Hooper, 133
Ill. 2d 469, 495 (1989); People v. Hopkins, 29 Ill. 2d 260, 265-66 (1963);
People v. Palmer, 27 Ill. 2d 311, 314 (1963). The trial judge's examination
must be conducted in a fair and impartial manner, without indicating bias or
prejudice against either party. People v. Marino, 414 Ill. 445, 450 (1953);
People v. Santucci, 24 Ill. 2d 93, 98 (1962). Whether the trial judge's
questioning is proper depends on the circumstances of each case and rests
largely within the discretion of the trial court. Nevitt, 135 Ill. 2d at 456;
Palmer, 27 Ill. 2d at 315.
The trial judge's questions in the present case did not violate these
principles. It is apparent from the record that the trial judge was
attempting to clarify what he considered to be confusing testimony. On direct
examination, defendant testified that on January 2, 1991, Anthony pulled a
knife out of his pocket and pointed it at defendant. Defendant then slapped
the knife away, and it struck Michelle. Defendant also stated that as he
slapped the knife away, he was cut on the palm of his right hand. Defendant
subsequently testified about the shooting incident at Michelle's house on
January 3, 1991. Defendant stated that he had the gun in his pocket when he
arrived at Michelle's house. According to defendant, Anthony put his hand in
his jacket and defendant put his hand in his pocket. Defendant became
paranoid that Anthony would pull out a gun so defendant pointed his gun at
Anthony. Anthony then hit the gun and it went off and struck Michelle. On
redirect examination, defendant demonstrated how Anthony swung at him
when
defendant had the gun. Defense counsel then asked, "And when he swung in
that
manner ... is that when he struck your hand?" and defendant replied, "Yes,
sir." The trial judge apparently perceived the foregoing testimony to be
confusing in light of defendant's earlier testimony that he had been struck
on the hand the previous day when Anthony pulled a knife. The trial judge
asked questions to clarify whether defendant had a gun in his hand on
January
2, 1991. The judge's questions about the gun did not indicate a bias,
prejudice or hostility against defendant. Neither did the judge imply that he
found defendant to be not credible. Rather, the judge merely sought to
clarify defendant's version of the incident. Under these circumstances, we
conclude that the trial judge did not abuse his discretion by questioning
defendant about the gun.
C.
Improper Impeachment
Defendant asserts that he is entitled to a new trial because the trial
court committed reversible error in denying his motion to bar the State from
impeaching his credibility with evidence of his 1986 conviction for
aggravated battery. Defendant contends that his aggravated battery conviction
had no bearing on his testimonial credibility. Instead, defendant protests,
such evidence was highly prejudicial because it suggested to the jury that
defendant had a propensity for violent criminal behavior.
The rule governing the admission of prior convictions to impeach a
witness' credibility has been examined by this court on a number of
occasions. In People v. Montgomery, 47 Ill. 2d 510 (1971), this court
provided trial courts with discretion to allow impeachment of a witness'
testimonial credibility by admitting a prior conviction. Montgomery, 47 Ill.
2d at 515. More specifically, the Montgomery rule provided that, for the
purpose of attacking a witness' credibility, evidence of a prior conviction
is admissible only if (1) the crime was punishable by death or imprisonment
in excess of one year; or (2) the crime involved dishonesty or false
statement regardless of the punishment. In either case, however, the evidence
is inadmissible if the judge determines that the probative value of the
evidence of the crime is substantially outweighed by the danger of unfair
prejudice. Montgomery, 47 Ill. 2d at 516. In addition, evidence of a
conviction under this rule is inadmissible if a period of more than 10 years
has elapsed since the date of conviction or release of the witness from
confinement, whichever is later. Montgomery, 47 Ill. 2d at 516.
This court recently reexamined the Montgomery rule in People v.
Williams, 161 Ill. 2d 1 (1994). In Williams, this court determined that the
lower courts were mechanically applying the Montgomery rule to allow
impeachment of a testifying defendant with virtually all types of prior
felony convictions. Williams, 161 Ill. 2d at 38-39. This court was concerned
with the lack of emphasis
lower courts had placed on the third prong of the Montgomery rule, that is,
the balancing test. We emphasized the importance of conducting the balancing
test of probative value versus unfair prejudice before admitting prior
convictions for impeachment purposes. Williams, 161 Ill. 2d at 38-41.
Following this court's decision in Williams, there has been confusion in
the appellate court regarding whether Williams modified or changed the rule
established in Montgomery. See People v. Bramlett, 276 Ill. App. 3d 201
(1995); People v. Elliot, 274 Ill. App. 3d 901 (1995); People v. Fomond, 273
Ill. App. 3d 1053 (1995); People v. Maxwell, 272 Ill. App. 3d 57 (1995). We
hold that Williams does not alter the three-prong rule set forth in
Montgomery. Rather, this court in Williams was expressing concern about the
indiscriminate admission of all prior felony convictions for impeachment
purposes absent application of the critical balancing test mandated by
Montgomery.
The defendant in Williams was on trial for murder, and the trial judge
allowed the State to impeach the defendant with a prior conviction for
voluntary manslaughter. In overruling the defendant's objection to the
impeachment, the trial judge stated that the conviction was " `of great
probative value in a case of this nature,' " and, further, was " `highly
probative of the nature of the offense.' " Williams, 161 Ill. 2d at 40. The
trial judge seemingly allowed the impeachment because the underlying offense
demonstrated the defendant's propensity for violence. As this court
explained:
"The court's references to `a case of this nature' and `the nature
of the offense' indicate that the trial judge admitted the evidence
of the prior homicide conviction as being probative of the issue of
defendant's guilt of the charged offense of murder, rather than as
bearing upon defendant's credibility as a witness." Williams, 161
Ill. 2d at 40.
To be sure, there is language in Williams to the effect that this court
no longer approved of the common rationale that a witness' prior felony
conviction may by itself evince disrespect for social order and therefore
supply a proper basis for impeachment. Williams, 161 Ill. 2d at 39. It has
been noted that this discussion in Williams could be construed as eliminating
the first part of the Montgomery test, leaving as eligible grounds for
impeachment only convictions for offenses that involve dishonesty or false
statement and that thus qualify under the second part of Montgomery. See
Bramlett, 276 Ill. App. 3d at 211-13 (Steigmann, J., specially concurring);
Fomond, 273 Ill. App. 3d at 1068; Maxwell, 272 Ill. App. 3d at 61; see also
M. Graham, Cleary & Graham's Handbook of Illinois Evidence §609.4, at 82-87
(Supp. 1996). We now wish to make clear our continued adherence to the
three-
part test set forth in Montgomery.
Turning to the facts of the present case, we find no error in the
proceedings below. Contrary to the defendant's argument, there is no reason
to suppose that the trial judge failed to weigh the probative value of the
impeachment against its possible prejudicial effect. A review of the
transcript shows that the judge was fully aware of the Montgomery standard
and the balancing test it requires. The parties referred to the balancing
test in their arguments to the judge on the question whether the defendant
could be impeached with the earlier conviction. In similar circumstances,
this court has declined to find error when the transcript makes clear that
the trial judge was applying the Montgomery standard, even though the judge
did not expressly articulate it (see People v. Redd, 135 Ill. 2d 252, 325-26
(1990)), and the same result must be reached here. Although the trial judge
in this case did not explicitly state that he was balancing the opposing
interests, there is no reason to suppose that he disregarded the familiar,
well-established Montgomery standard in determining that the impeachment
was
proper.
D.
Trial Judge's Response to Jury Questions
During its deliberations, the jury sent two notes to the trial judge.
Defendant now argues that the trial judge erred in the manner in which he
responded to the jury's notes.
The first note requested the following: (1) the distance from which a
gun could leave a burn mark on skin; (2) Assistant State's Attorney White's
report; (3) a copy of defendant's 1986 arrest report; and (4) copies of the
"other exhibits that were entered." In response to this note, the following
exchange occurred between the trial judge and defense counsel:
"THE COURT: I am going to answer.
DEFENSE COUNSEL 1: Those are a series of questions.
THE COURT: You going to tell me how to answer?
DEFENSE COUNSEL 1: I'd like to read it.
THE COURT: Here, read it.
DEFENSE COUNSEL 1: Don't you think counsel has a right to read
the questions?
THE COURT: Sure. You read them, but don't tell me what to do.
DEFENSE COUNSEL 1: The first question from Corn--
THE COURT: That is the name of one of the jurors.
DEFENSE COUNSEL 1: No, it is the medical examiner's how far
for the gun to leave a burn mark? 2 Can we have the report that
Kathy White wrote? 3 A copy of [defendant's] 1986 arrest report.
Now in relationship to that one, I don't think they are talking
about the certified copy.
THE COURT: I don't want to know what you think.
DEFENSE COUNSEL 1: Number 4, can we have copies of the other
exhibits that were entered?
THE COURT: Did you read it?
DEFENSE COUNSEL 1: Yes. Now I will give my answers.
THE COURT: Please continue to deliberate. You have all of the
exhibits and I am just going to say please continue to deliberate.
And I am going to mark this 7-14-93 and I am going to initial.
Anything you want to put on there?
DEFENSE COUNSEL 2: Yes, Judge today is the 13th.
THE COURT: Anything you want to put on the record?
DEFENSE COUNSEL 2: No."
Defendant challenges the trial judge's actions in responding to this
note. Defendant contends that the trial judge conducted a "de facto ex parte"
proceeding because the trial judge refused to allow defense counsel to
participate in formulating a response to the jury's note. Because of the
trial judge's improper actions, defendant insists, he was denied his sixth
amendment right to counsel. The State responds that this argument is waived.
The State points out that defense counsel neither made an objection at the
time of the alleged error nor stated this reason as grounds for error in his
post-trial motion. It is well established that both an objection at trial and
a written post-trial motion raising the issue are necessary to preserve an
alleged error for review. People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Application of the waiver rule, however, is less rigid where the basis for
the objection is the trial judge's conduct. Nevitt, 135 Ill. 2d at 455. We
will address defendant's claim of alleged judicial impropriety.
Defendant relies on this court's decision in People v. Childs, 159 Ill.
2d 217 (1994), as support for his contention that the jury's requests were
considered in a "de facto ex parte" proceeding. In Childs, the jury sent a
note to the trial judge with a question regarding the instructions. The trial
judge informed the prosecutors of the question and his response. However, the
trial judge made no effort to contact defense counsel before answering the
jury's note. This court in Childs noted that "a defendant has an absolute
right to be informed of any jury question involving a question of law and to
be given the opportunity to participate for his protection in fashioning an
appropriate response." Childs, 159 Ill. 2d at 234. The Childs court held that
the defendant was denied that right because defense counsel was not
consulted
prior to the trial court's response to the jury's question and, therefore,
defense counsel was not able to participate in the process of determining
what would be an appropriate response. Childs, 159 Ill. 2d at 234.
The facts in this case are distinguishable from those in Childs. When
the trial judge received the jury's note, he read the note on the record with
both defense counsel and the State present. Defense counsel was able to make
statements on the record. In fact, the trial judge gave defense counsel an
open invitation to raise objections, stating, "Anything you want to put on
the record?" Defense counsel responded, "No." Under these circumstances, we
find that the trial judge did not conduct a "de facto ex parte" proceeding,
and defendant was not deprived of his constitutional right to counsel.
In addition to the first note, the jury sent the trial judge a second
note, which requested the following documents: (1) a transcript of
defendant's testimony; (2) a transcript of Detective Cione's testimony; (3)
Detective Cione's written report; (4) Assistant State's Attorney White's
report; and (5) defendant's initialed report of his rights being read to him.
The trial judge responded by informing the jury that it had been given all of
the exhibits admitted into evidence, had heard sworn testimony of the
witnesses, and to continue deliberations. Defendant charges that the trial
judge erred in refusing to give the jury the items requested.
The State responds that defendant waived any error that may have
occurred in the trial judge's response to the second note. It is the State's
contention that defense counsel acquiesced in all but "the form of the
court's answer" and failed to preserve this argument. We disagree. The record
reveals that after reading the jury's note, defense counsel asked the court
to "attempt to get the testimony for them." Defense counsel also stated that
he had no objection to giving the jury the requested Miranda form. It was
only when the subject of the discussion changed from the substance of the
jury's request to the wording of the response to the request that counsel
objected to the "form of the court's answer." It is evident from defense
counsel's responses that he sought to have the requested reports and
transcripts provided to the jury. This is not a new argument raised for the
first time on appeal. We, therefore, do not find defendant's argument waived.
Defendant maintains that the trial judge should have complied with the
jury's request for Assistant State's Attorney White's report, Detective
Cione's report, and defendant's initialed report acknowledging Miranda
warnings. These items, however, were not admitted into evidence. Where
documents have not been admitted into evidence, the trial judge is without
discretion to provide them to the jury during deliberations. People v.
Johnson, 146 Ill. 2d 109, 151 (1991); see also People v. Bradley, 220 Ill.
App. 3d 890, 901-02 (1991). Because these documents were not admitted into
evidence, the trial judge properly refused to give them to the jury.
Defendant further argues that the trial judge should have complied with
the jury's request for transcripts of the testimony of Detective Cione and
defendant. The determination of whether to grant or deny a jury's request to
review transcripts of witnesses' testimony rests within the sound discretion
of the trial court. People v. Pierce, 56 Ill. 2d 361, 364 (1974). Absent an
abuse of that discretion, the trial court's determination will not be
disturbed on review. Pierce, 56 Ill. 2d at 364; People v. Franklin, 135 Ill.
2d 78, 105 (1990); People v. Olinger, 112 Ill. 2d 324, 349 (1986). In the
present case, the record indicates that the trial judge invited arguments and
objections from both sides. The trial judge listened to the arguments put
forth, exercised his discretion, and determined that the best response was to
tell the jurors that they had heard the sworn testimony of the witnesses, and
that they should continue to deliberate. There is nothing in the record to
indicate that the trial judge abused his discretion in denying the jury's
request. We therefore find that the trial judge properly exercised his
discretion in refusing to provide the requested transcripts to the jury.
III. SENTENCING ISSUES
A.
Validity of Jury Waiver
Defendant charges that his death sentence must be vacated because his
waiver of a jury for his capital sentencing hearing was invalid. Defendant
asserts that his waiver of a jury for sentencing was not knowing and
intelligent because the trial court did not advise him that one juror could
prevent the imposition of a death sentence. This argument has already been
considered and rejected by this court. People v. Ramey, 152 Ill. 2d 41, 59
(1992) (for a jury waiver at a capital sentencing hearing to be knowing,
intelligent, and voluntary, a defendant need not be expressly advised that
the vote of a single juror will preclude imposition of the death penalty or
that the decision of the jury to impose the death penalty must be unanimous);
People v. Thompkins, 161 Ill. 2d 148, 178-79 (1994); People v. Ruiz, 132 Ill.
2d 1, 20-21 (1989).
There is no "fixed formula" that a court must recite prior to accepting
a defendant's valid waiver of a jury at sentencing. People v. Strickland, 154
Ill. 2d 489, 517 (1992). Instead, we have held that it is sufficient for a
valid jury waiver that the trial court explain to the defendant that he is
waiving the right to have a jury consider the capital sentencing issues and
that the sentencing decision would, therefore, be made by the judge alone.
People v. Wiley, 165 Ill. 2d 259, 301 (1995); Ramey, 152 Ill. 2d at 59. Here,
the trial judge explained to defendant that he was waiving his right to have
the jury consider the capital sentencing issues and that the sentencing
decision would, therefore, be made by the trial judge alone. Given these
admonishments by the trial judge, we find the jury waiver to be valid. See
Ramey, 152 Ill. 2d at 59.
B.
Eligibility
Defendant charges that his death sentence must be vacated because the
sole aggravating factor relied on by the trial court to find eligibility is
invalid. The trial court found defendant eligible for the death sentence
pursuant to the aggravating factor set forth in section 9--1(b)(11) of the
Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9--1(b)(11)).
Section 9--1(b)(11) provides that a statutory aggravating factor sufficient
to make a defendant eligible for the death penalty exists if:
"the murder was committed in a cold, calculated and
premeditated manner pursuant to a preconceived plan, scheme or
design to take a human life by unlawful means, and the conduct of
the defendant created a reasonable expectation that the death of a
human being would result therefrom." Ill. Rev. Stat. 1991, ch. 38,
par. 9--1(b)(11).
Defendant asserts that section 9--1(b)(11) is unconstitutionally vague under
the eighth and fourteenth amendments to the United States Constitution (U.S.
Const., amends. VIII, XIV). More specifically, defendant suggests that the
terms "cold, calculated and premeditated" are open to many interpretations.
Defendant therefore contends that section 9--1(b)(11) must be given a
limiting construction to render it constitutional. Because the trial court
here failed to apply a narrowing construction to section 9--1(b)(11),
defendant claims, his death sentence is invalid.
This court has already rejected the argument that the term "cold,
calculated and premeditated," as used in 9--1(b)(11), is unconstitutionally
vague. People v. Johnson, 154 Ill. 2d 356, 372-73 (1993). In that case, we
found that the challenged terms provide adequate guidance for assessing death
eligibility. Johnson, 154 Ill. 2d at 373. When considering the totality of
the words used in section 9--1(b)(11), we find that they provide sufficient
guidelines for the sentencer in determining eligibility. See People v.
Munson, 171 Ill. 2d 158, 191 (1996). We therefore reaffirm our holding in
Johnson that section 9--1(b)(11) is constitutionally valid.
In a related argument, defendant challenges the sufficiency of the
evidence to establish his eligibility for the death penalty under section 9--
1(b)(11). Defendant contends that the evidence failed to show that he
committed the murder in a "cold, calculated and premeditated manner" as
described in section 9--1(b)(11). It is defendant's contention that the
murder occurred because of rage, which developed spontaneously at the scene.
We disagree.
The evidence indicates that on the day before the murder, defendant
attacked Michelle and Anthony with a butcher knife, and threatened to kill
them if he ever saw them together. The following afternoon defendant became
upset when he saw Michelle with Anthony at the shopping mall. Later that
same
day, defendant took a loaded .38-caliber revolver and drove to Michelle's
house. When defendant arrived at Michelle's house, he parked the car around
the corner and hid behind a tree and waited for Michelle to come out of the
house. When Michelle and Anthony came out of the house, defendant emerged
from behind the tree, carrying the loaded gun, and walked directly up to
Anthony and shot him in the left shoulder. As Anthony fell to the ground,
defendant placed the gun within an inch from Michelle's head and shot her.
Then, defendant shot Anthony in the right shoulder as Anthony attempted to
run away.
These facts demonstrate that defendant's actions were not spontaneous.
The sentencer could find that defendant murdered Michelle after much
thought
and reflection. Defendant had ample time for reflection the previous day
after he threatened Michelle and Anthony and attacked them with a knife.
Defendant had more time for reflection after he again saw Michelle and
Anthony together at the mall the next afternoon. Defendant's actions in
driving home and then proceeding to Michelle's house later that evening with
a loaded gun show that defendant contemplated this murder well in advance.
We
find that this evidence supports the trial court's determination that
defendant murdered Michelle in a cold, calculated and premeditated manner
pursuant to a preconceived plan, scheme or design to take her life by
unlawful means. Furthermore, defendant's conduct in shooting Michelle in the
head at close range created a reasonable expectation that she would die.
Thus, the evidence was sufficient to prove the existence of the aggravating
factor set forth in section 9--1(b)(11).
C.
Denial of Continuance
Defendant asserts that the trial court abused its discretion when it
denied defendant a continuance for the second stage of the sentencing
hearing. Defendant insists that a continuance was warranted because he
provided the trial court with specific information establishing that much of
his investigation into mitigation was incomplete.
Following the trial court's finding of eligibility, defense counsel
filed a motion requesting a continuance to allow Dr. George Savarese,
defendant's mitigation specialist, additional time to complete his
psychosocial evaluation of defendant. A psychosocial evaluation is an attempt
to understand the developmental history of an individual. The trial court
granted defendant a continuance from August 9, 1993, to September 27, 1993,
approximately seven weeks. The trial court indicated to defense counsel that
no further continuances would be allowed. On September 27, 1993, defense
counsel filed an affidavit from Dr. Savarese stating that he was unable to
complete his investigation. According to Dr. Savarese, there were remaining
family members and friends to interview and additional documents to view.
Defense counsel, however, did not request a second continuance. The
sentencing hearing then proceeded.
Defendant argues that the trial court abused its discretion when it did
not grant a continuance following defense counsel's filing of Dr. Savarese's
affidavit. This court has held that the granting or denial of a continuance
is a matter resting in the sound discretion of the trial judge, and a
reviewing court will not interfere with that decision unless there has been
a clear abuse of discretion. People v. Gosier, 145 Ill. 2d 127, 156-57
(1991); People v. Collins, 106 Ill. 2d 237, 281 (1985). Here, the record
reveals that Dr. Savarese evaluated defendant's childhood, family history,
health history, educational history, employment history, criminal and prison
records. Despite a claim that the investigation was incomplete, Dr. Savarese
was able to present his expert opinion regarding the cause of defendant's
actions. Dr. Savarese found that the murder of Michelle and attempted murder
of Anthony resulted from an explosion of underlying rage, following
defendant's perceived rejection and betrayal of his best friends. In
addition, the defense presented further evidence in mitigation through the
testimony of defendant's neighbor, defendant's former girlfriend, two of
defendant's sisters, and defendant's mother. They provided testimony as to
defendant's good character and difficult childhood. In light of the
foregoing, it is evident that defense counsel provided substantial evidence
in mitigation. Any further evidence would likely have been cumulative.
Therefore, we find that the trial court did not abuse its discretion in
denying any further continuances.
In a related argument, defendant argues that defense counsel was
ineffective for failing to renew the request for a continuance after filing
Dr. Savarese's affidavit. Given that we have found no abuse of discretion in
the trial court's failure to grant a second continuance, defendant's argument
fails.
D.
Rebuttal Argument
Defendant contends that he was denied a fair sentencing hearing because
the trial court permitted the State to argue in rebuttal at the aggravation-
mitigation phase of the capital sentencing hearing. The trial judge has
discretion to allow the State to present a rebuttal argument since the State
is the moving party at the sentencing hearing. People v. Williams, 97 Ill. 2d
252, 302-03 (1983). This court's holding in Williams has been repeatedly
reaffirmed. People v. Tenner, 157 Ill. 2d 341, 382 (1993); People v. Page,
155 Ill. 2d 232, 282-83 (1993); People v. Caballero, 102 Ill. 2d 23, 47-48
(1984). Defendant has not presented any compelling reason for this court to
reconsider its prior decisions. We, therefore, reject defendant's argument.
IV. CONSTITUTIONALITY OF THE ILLINOIS DEATH
PENALTY STATUTE
In his final two arguments, defendant challenges the constitutionality
of the Illinois death penalty statute. We decline defendant's invitation to
revisit the following arguments: (1) that the death penalty statute places a
burden of proof on the defendant that precludes meaningful consideration of
mitigation (People v. Johnson, 154 Ill. 2d 356, 373 (1993); People v.
Mitchell, 152 Ill. 2d 274, 345-46 (1992); People v. Bean, 137 Ill. 2d 65,
138-40 (1990)); and (2) that the death penalty statute does not sufficiently
minimize the risk of arbitrarily or capriciously imposed death sentences
(Tenner, 157 Ill. 2d at 390; People v. Whitehead, 116 Ill. 2d 425, 465
(1987); People v. Albanese, 104 Ill. 2d 504, 541-42 (1984)). This court has
previously considered and rejected these arguments. Defendant offers no
persuasive reason for this court to reconsider its prior decisions.
Accordingly, we find no merit to defendant's challenges to the
constitutionality of the Illinois death penalty statute.
CONCLUSION
For the reasons set forth above, we affirm defendant's convictions and
sentences. We direct the clerk of this court to enter an order setting
Wednesday, September 18, 1996, as the date on which the sentence of death,
entered by the circuit court of Cook County, shall be carried out. Defendant
shall be executed in the manner provided by law. Ill. Rev. Stat. 1991, ch.
38, par. 119--5. The clerk of this court shall send a certified copy of this
mandate to the Director of Corrections, to the warden of the Stateville
Correctional Center, and to the warden of the institution where defendant is
now confined.
Affirmed.
JUSTICE HARRISON took no part in the consideration or decision of this
case.
JUSTICE FREEMAN, dissenting:
Under our sentencing scheme, the second phase of a death penalty hearing
requires the jury or the court to weigh and balance any mitigating factors
against the aggravating factors. People v. Turner, 156 Ill. 2d 354, 359
(1993). If there are no mitigating factors sufficient to preclude imposition
of the death penalty, the court shall sentence the defendant to death. Ill.
Rev. Stat. 1991, ch. 38, par. 9--1.
In this case, the trial court found no mitigation sufficient to preclude
death. A majority of this court now affirms that sentence. I disagree. In
People v. Carlson, 79 Ill. 2d 564 (1980), and People v. Buggs, 112 Ill. 2d
284 (1986), this court, finding that the trial court had not appropriately
balanced the mitigation evidence, was prompted to reduce those defendants'
death sentences to life imprisonment. The facts here, though different from
those in Carlson and Buggs, give rise to the same kind of concerns. Thus, in
my view, the same result which occurred in Carlson and in Buggs should
obtain
here.
In this case, the record reveals that the conduct which ultimately led
to Michelle Brueckmann's death was triggered by defendant's loss of an
exclusive romantic relationship with her. The record consistently
demonstrates that the motivation behind this young defendant's violent
conduct, from the time of his breakup with Michelle until her untimely death,
was defendant's emotional inability to cope with the loss of that
relationship. Significantly, the events, which occurred over the course of a
four- to five-month period after the breakup, involved those people with whom
defendant had previously enjoyed a close and lasting friendship.
A review of the evidence is illustrative. Defendant testified that he
met Michelle in 1984. He was best friends with her, Anthony Cole, Darrio
Ramirez and Noel Garcia.
In 1984 defendant and Michelle became engaged to be married. The
engagement terminated around September 1990, however, according to
defendant,
the two continued to see each other. Defendant stated that he did not really
consider their relationship as boyfriend and girlfriend to be terminated. In
fact, on Christmas of 1990, defendant purchased Christmas gifts for Michelle.
Michelle's mother, Cheryl Brueckmann, testified that Michelle's
engagement to defendant lasted for approximately one year. Prior to becoming
engaged, Michelle and defendant had been "going together" for a couple of
years. Although the engagement was terminated in the summer of 1990, the
couple continued seeing each other.
Noel Garcia testified that he had known defendant for about ten years;
he used to "hang out" with him. During that time, Garcia saw defendant
almost
every day. Garcia was also best friends with Anthony Cole and he knew
Michelle. According to him, as of January 3, 1991, Michelle and defendant
were continuing to date.
At sentencing, Garcia testified that in August of 1990, he dated
Michelle for a couple of days. On one of their dates, Garcia and Michelle
attended the Pan American Fest with Anthony Cole and Dawn Juarez. On the
following day, Garcia and defendant went for a drive with Anthony and Darrio
Ramirez. After dropping off Anthony, Garcia, Ramirez and defendant continued
driving until they reached a dead-end street by the Chicago River. They
parked and began to drink a little.
While the three were together, and as Darrio stood watching, defendant
tied up Garcia and began kicking him in the face and punching him.
Defendant
then broke a bottle, put it to Garcia's neck and told Garcia that he was
going to kill him because he had been with Michelle. Darrio intervened and
Garcia subsequently passed out.
As a result of the beating, Garcia sustained a fractured nose and a
scarring injury under his left eye. Garcia did not identify defendant to
police investigators as his attacker. Instead, he told the police that he had
been jumped by some "gang bangers."
Anthony Cole also testified that he and defendant had been friends for
about 15 years, seeing each other almost every day. At the time of Michelle's
death, Cole had known Michelle, as a friend, for about five years. Cole
testified that he and Michelle dated for about one month before she was
killed.
Cole further testified that on January 2, 1991, defendant approached him
at his home and asked if he had been seeing Michelle. Cole denied seeing her;
however, he was dating her and, in fact, Michelle had spent the night at
Cole's house.
Cole subsequently called to Michelle to come out of the house and to
join him and defendant. Michelle joined them and the three subsequently
entered Cole's car with defendant riding alone in the back seat. Cole then
proceeded to drive defendant home. Prior to arriving at defendant's house,
defendant jumped into the front seat with a butcher knife. A struggle ensued
and, as a result, Cole received a cut on his hand. Cole stopped the car, he
and defendant jumped out, and defendant chased Cole around the car.
According
to Cole, defendant threatened then that if he saw Cole and Michelle together
again, he would kill Cole.
Michelle sustained a cut on hand as a result of this incident. Cole left
the area and summoned the police. The police responded and recovered the
knife. Cole took Michelle to the hospital for treatment; he, however,
received no medical attention for his injury. There were no arrests as a
result of this incident.
The next day, upon seeing Cole and Michelle together again, defendant
shot and wounded Cole and fatally wounded Michelle.
There is also testimony that defendant had previously physically
assaulted Michelle. On one occasion in particular, defendant beat Michelle,
then held a gun to her head and pulled the trigger. He threatened that if he
could not have her that no one else would. Fortunately, the gun had no bullet
in the chamber which was fired.
As is apparent from these accounts, the recurring theme in each episode
which led up to Michelle's death is defendant's jealous anger over what
defendant perceived to be a "love triangle" involving him, his girlfriend and
his best friends. The seriousness of these episodes is evident. However, and
while I do not mean to diminish that seriousness, the particular people
involved as well as the time frame in which these incidents occurred cannot
be ignored. Given the dynamics in this case, I find death an inappropriate
sentence.
Incidentally, Dr. George Savarese, a licensed clinical social worker,
testified that Michelle's murder resulted from an explosion of defendant's
underlying rage, following defendant's perceived rejection and betrayal of
his best friends.
My colleagues would rightfully assert that a sentencing judge's
sentencing determination is to be afforded much deference and that altering
a defendant's sentence must be approached cautiously and with the utmost
circumspection. These are established and highly valued principles to which
I most assuredly adhere. However, they are just that, principles. And,
although they guide us in our review, when warranted, they cannot preclude a
decision to alter what is an inappropriate sentencing determination.
Defendant testified that he always believed that he and Michelle were
"going together." The testimony of Michelle's mother and of Garcia lend
credence to his testimony. This then is clearly a case in which the defendant
was unable to appropriately manage the loss of his exclusive relationship
with Michelle. Defendant's problem with managing this loss was merely
exacerbated by the fact that the parties who became romantically involved
with Michelle were defendant's closest friends.
Notably, this defendant had no juvenile criminal history, until the age
of 17, at which time he was convicted of aggravated battery. Except for those
events, which appear to have been motivated by defendant's anticipated loss
of his exclusive romantic relationship with Michelle, the record does not
evidence an ongoing pattern of depraved or violent conduct.
The circumstances surrounding these unfortunate incidents were
uncontrolled passion and jealous anger. Without question, this defendant
should be punished for his terrible deeds. However, unless we carefully sift
together all of the facts, all of the circumstances, and all of the dynamics
which combine to bring about the commission of a particular offense, we risk,
as in this case, a nondiscriminating application of what should be a most
discriminately applied punishment--death.
As a final matter, I note my agreement with Justice Nickel's dissent on
the issue of the alleged Batson violation. I cannot concur in the majority's
characterization of the State's proffered explanation as "merely
descriptive." There were only two venirepersons requiring distinction for the
court. One was a Caucasian male and the other an African-American male. As
between the two, the only necessary and identifying distinction was race.
"Merely descriptive" then, would have been "the black man." The State's
unnecessary characterization of the African-American venireperson--"You saw
he was a black man with red hair"--though not dispositive, certainly suggests
the occurrence of a Batson violation. So colorful a characterization not only
invites, but warrants, a closer look. I therefore also join Justice Nickel's
dissent.
JUSTICE NICKELS, also dissenting:
Normally the first step of the Batson inquiry into a claim that the
prosecution has exercised peremptory challenges in a racially discriminatory
manner is to determine whether the defendant has established a prima facie
case of racial discrimination. Purkett v. Elem, 514 U.S. ___, ___, 131 L. Ed.
2d 834, 839, 115 S. Ct. 1769, 1770-71 (1995). However, when the prosecution
volunteers its race-neutral explanation for excusing a challenged
venireperson before the trial court's determination that the defendant has
established a prima facie case of discrimination, the question of whether the
defendant has satisfied step one of the Batson inquiry is rendered moot.
People v. Hope, 168 Ill. 2d 1, 19 (1995), citing Hernandez v. New York, 500
U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991).
In the instant case, defense counsel raised a Batson objection to the
prosecution's exercise of a peremptory challenge against venireperson Martin.
In response, the prosecution first asserted that it was not required to give
reasons for the challenge until a prima facie case had been established.
Nevertheless, prior to the trial court's determination regarding the prima
facie case, the prosecution volunteered to the court that: (1) Martin was an
African-American with red hair (2) who was not satisfied with the outcome of
several cases and (3) that it was obvious from the situation why Martin was
excluded.
This court has held that "[o]nce the prosecutor offers a race-neutral
basis for his exercise of peremptory challenges, it is the trial court's duty
to determine if the defendant has established purposeful discrimination."
People v. Kitchen, 159 Ill. 2d 1, 19 (1994), citing Batson v. Kentucky, 476
U.S. 79, 98, 90 L. Ed. 2d 69, 88-89, 106 S. Ct. 1712, 1723-24 (1986); see
also Purkett, 514 U.S. at ___, 131 L. Ed. 2d at 839, 115 S. Ct. at 1770-71
(if a race-neutral explanation is tendered by the prosecution, the trial
court must decide whether the opponent of the strike has proved purposeful
discrimination). Therefore, because the prosecution here offered race-neutral
reasons for its peremptory challenge of Martin, the question of whether a
prima facie case had been established was rendered moot and the trial court
was required to rule upon the ultimate issue of discrimination. Instead, the
trial court found only that a prima facie case had not been established.
Even though the issue had been rendered moot, the majority,
nevertheless, upholds the trial court's finding that a prima facie case had
not been established. However, the proper analysis of cases in which the
prima facie question is rendered moot is to review the trial court's findings
regarding the legitimacy of the prosecution's race-neutral reasons. See Hope,
168 Ill. 2d at 19-21; Kitchen, 159 Ill. 2d at 19; People v. Mitchell, 152
Ill. 2d 274, 289 (1992). In the instant case, the trial court made no
findings as to the reasons offered by the prosecution.
The legitimacy of the prosecution's race-neutral reasons is generally a
factual matter determined by the trial court because the trial judge is in
the best position to observe the demeanor of potential jurors and then
evaluate prosecutive explanations for peremptory challenges. Mitchell, 152
Ill. 2d at 296; see also Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409,
111 S. Ct. at 1869, quoting Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed.
2d 841, 854, 105 S. Ct. 844, 854 (1985). In addition, after the prosecution
offers reasons for its peremptory challenges, the defense counsel is then
allowed an opportunity to rebut the prosecution's reasons as being
pretextual. Mitchell, 152 Ill. 2d at 288. However, in the instant case the
trial court affirmatively prevented defense counsel's attempts to develop
rebuttal evidence.
Because the establishment of the prima facie case was rendered moot, the
trial court should have allowed defendant an attempt to rebut the
prosecution's explanations as pretextual and completed the Batson analysis.
For the foregoing reasons, I would remand the cause to the trial court for
further proceedings pursuant to Batson. Therefore, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.
Document Info
Docket Number： 76907
Filed Date： 5/31/1996
Precedential Status： Precedential
Modified Date： 10/22/2015