People v. Ross , 2022 IL App (3d) 200033-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 200033-UOrder filed November 1, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0033
v. ) Circuit No. 15-CF-506
)
MICTAVIUS T. ROSS, ) Honorable
) Paul P. Gilfillan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HAUPTMAN delivered the judgment of the court.
Justices Daugherity and Peterson concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed
where defendant’s petition was frivolous and patently without merit.
¶2 Defendant, Mictavius T. Ross, appeals the Peoria County circuit court’s summary
dismissal of his postconviction petition. Defendant argues the court erred in dismissing his
petition because it stated arguable claims of ineffective assistance of appellate counsel where
counsel did not: (1) raise a Batson issue; (2) challenge the court’s procedure that collapsed the
Batson inquiry; and (3) raise trial counsel’s ineffectiveness for failing to challenge the jury as not
being drawn from a fair cross-section of the community. We affirm.
¶3 I. BACKGROUND
¶4 In 2015, the State charged defendant by indictment with one count of attempted armed
robbery (720 ILCS 5/8-4(a), 18-2(a)(2) (West 2014)), three counts of home invasion (id. § 19-
6(a)(3)-(5)), and one count of aggravated battery (id. § 12-3.05(e)(1)). Defendant’s case
proceeded to a jury trial in June 2016.
¶5 During jury selection, the State exercised a peremptory challenge to excuse an African
American juror, James Jordan, who was part of the first 12 venire members called to the jury box
for voir dire. In chambers, defense counsel objected to Jordan’s dismissal and raised a Batson
challenge. The parties agreed that both defendant and Jordan were African American and that, at
a glance, only 2 of approximately 35 prospective jurors in the jury pool were African American.
The court explained that defense counsel needed to establish a prima facie case of purposeful
discrimination, sufficient to allow the court to draw an inference that discrimination had
occurred, thereby shifting the burden to the State to provide a race-neutral explanation for
excusing the juror. Defense counsel responded:
“Well, I can tell you that it seemed to me that excusing one out of two
with a group of 35 essentially is almost prima facie. The proposed juror had a
nephew who had some criminal background that is not close to, didn’t even know
how old he was. Had a brother who was a victim of a murder, that went to trial
and the person was convicted of murder. It seems to me and he has—he’s mid-70s
individual, born in 1942, is retired [from] the Department of Human Services
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where he had employment in excess of 22 years. It seems to me that that would be
someone that would likely be a juror typically accepted by a prosecutor.”
¶6 The court responded that “We’ve only talked to four. [The State] hasn’t talked to 35,”
and further remarked, “I am feeling you have fallen way short of proving your prima facie case,”
and
“[defense counsel] has not shown me enough that would permit me to draw an
inference of discrimination has occurred. And don’t forget that potential juror,
Jordan, is a lifetime Department of Human Services employee, and people draw
inferences from that. I mean, not good or bad, but I mean about the kind of person
that is.”
¶7 When the parties returned to the courtroom, Jordan was excused. In total, 17
venirepersons were subject to voir dire, as the State and the defense each exercised one
additional peremptory strike. At the close of jury selection, the following exchange occurred:
“[DEFENSE COUNSEL]: *** Perhaps before that, simply reflect given
our discussion in chambers about the excused juror, if the record could reflect that
the—Mr. Jordan appeared to be the only African American that was called.
[THE COURT]: Yes, the record of course will so reflect that there were
two African Americans that I could see that were obviously African American
and only one made it in the jury box, and he was removed by the State. Right?
[DEFENSE COUNSEL]: Yes.
THE COURT: Thank you. Anything to add to that, [State]?
[THE STATE]: Other than he was one of two challenges I made, Judge.
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THE COURT: That is right. And let me say, a second time, based on a
first glance or a long glance, there a [sic] appeared to be—probably was only two,
the odds are really high, there were only the two, but you never know. Right?
[DEFENSE COUNSEL]: Absolutely.”
¶8 At the conclusion of the trial, the jury acquitted defendant of home invasion as charged in
count II and found defendant guilty of the remaining charges. On July 29, 2016, defendant filed a
motion for a new trial, arguing, inter alia, that the court “erred in refusing to inquire as to the
peremptory challenge of prospective juror James Jordan pursuant to [Batson].” Defendant’s
motion for a new trial was summarily denied and defendant was sentenced to 30 years’
imprisonment. On direct appeal, defendant argued exclusively that his conviction for home
invasion as charged in count IV must be vacated under one-act, one-crime principles. People v.
Ross, 2018 IL App (3d) 160478, ¶ 7. Defendant’s appeal was dismissed for lack of jurisdiction.
Id. ¶ 13.
¶9 On September 20, 2019, defendant filed a pro se postconviction petition pursuant to
section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018).
In his petition, defendant argued, inter alia, that appellate counsel was ineffective for failing to
challenge the circuit court’s denial of defendant’s Batson challenge during jury selection.
Defendant also alleged that the “Court Errored On Not Having More Black Jurors In The Jury
Pool.” Defendant specifically asserted that the State violated the equal protection clause when it
used a peremptory strike to remove one of the two potential African American jurors without
proper justification.
¶ 10 The circuit court summarily dismissed defendant’s petition via a written order filed on
December 3, 2019. The court found defendant’s petition to be frivolous and patently without
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merit and described defendant’s claims as vague, conclusory, and completely rebutted by the
record. The court found that even if only 2 of the 35 prospective jurors were African American,
this fact, standing alone, was insufficient to establish that the jury pool was improperly drawn.
The court also concluded that “[w]ithout Defendant filing a challenge at the time of trial he has
waived this issue and has nothing but broad conclusions to support his theory at this time.”
Defendant appeals.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues the court erred in dismissing his pro se postconviction
petition as it stated the gist of three ineffective assistance of appellate counsel claims. First,
appellate counsel was ineffective for failing to raise a Batson argument. Second, appellate
counsel was ineffective for failing to argue that the court improperly collapsed several stages of
its Batson inquiry. Third, defendant argues that appellate counsel was ineffective for failing to
raise trial counsel’s ineffectiveness in that trial counsel failed to challenge defendant’s jury as not
having been drawn from a fair cross-section of the community. The State argues that defendant’s
underlying Batson claim is meritless, defendant has forfeited review of whether the court
improperly collapsed its Batson inquiry, and defendant’s cross-section argument amounts to no
more than speculation.
¶ 13 A. Failure to Raise Batson Challenge on Direct Appeal
¶ 14 Turning to the postconviction proceeding, the Act offers criminal defendants a
mechanism to mount a collateral attack on a final judgment by asserting that in the proceedings
which resulted in his or her conviction, there was a substantial denial of his or her rights under
the United States Constitution, the Illinois Constitution, or both. People v. Clinton, 2016 IL App
(3d) 130737, ¶ 21; People v. Robinson, 2020 IL 123849, ¶ 42. The Act sets forth a three-stage
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process for reviewing postconviction claims. People v. Boclair, 202 Ill. 2d 89, 99 (2002);
Clinton, 2016 IL App (3d) 130737, ¶ 21. At the first stage, the petition is subject to summary
dismissal if the circuit court determines that the petition, on its face, is frivolous or patently
without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009); 725 ILCS 5/122-2.1(a)(2) (West
2018). A petition is said to be frivolous or patently without merit where its allegations lack any
arguable basis in either fact or law. Hodges, 234 Ill. 2d at 9. A petition lacks an arguable basis in
fact when it is based on fanciful factual allegations belied by the record and lacks an arguable
basis in law when it is based on an indisputably meritless legal theory, i.e., a legal theory that is
wholly contradicted by the record. Id. at 16-17. In making this legal determination, courts must
keep in mind that the threshold for the survival of a petition is low and that allegations not
contradicted by the record must be taken as true. Id. at 10. We review the circuit court’s
summary dismissal of defendant’s petition de novo. Id. at 9.
¶ 15 The sixth amendment provides that litigants are entitled to the effective assistance of
counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of
ineffective assistance of counsel on direct appeal are cognizable under the Act. People v. Mack,
167 Ill. 2d 525, 531 (1995) “At the first stage of postconviction proceedings under the Act, a
petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that
counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable
that the defendant was prejudiced.” Hodges, 234 Ill. 2d at 17. Appellate counsel’s failure to raise
a meritorious claim may result in the denial of a defendant’s right to effective assistance,
however, appellate counsel is not obligated to brief every conceivable issue on appeal, and it is
not incompetent of counsel to refrain from raising meritless issues, unless counsel’s appraisal of
the merits is patently wrong. People v. Easley, 192 Ill. 2d 307, 329 (2000). Thus, unless the
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underlying issue is meritorious, defendant suffers no prejudice from counsel’s failure to raise it
on appeal and cannot prevail on an ineffective assistance of appellate counsel claim. Id.¶ 16 The equal protection clause forbids prosecutors from striking potential jurors based on
race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). During voir dire in the instant case, defense
counsel challenged the State’s peremptory strike of Jordan, an African American male, pursuant
to Batson. Counsel’s challenge triggered a three-stage process wherein defendant was first
required to make a prima facie showing that the totality of the relevant facts and all relevant
circumstances surrounding the strike gave rise to an inference of a discriminatory purpose in the
juror’s dismissal. Id. at 91-97; Johnson v. California, 545 U.S. 162, 168 (2005); People v. Davis,
231 Ill. 2d 349, 360 (2008); see Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (“in reviewing a
ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial
animosity must be consulted.”). If the challenging party makes a prima facie showing, the
burden shifts to the challenged party to offer a race-neutral explanation for the dismissal.
Johnson, 545 U.S. at 168.
¶ 17 The threshold for stating a prima facie claim under Batson is not high. Davis, 231 Ill. 2d
at 360. Defendant may satisfy this first requirement by producing evidence sufficient to permit
the circuit court to draw some inference that discrimination has occurred. Id. When reviewing the
record to see if the facts suggest such an inference, a court must consider the totality of the
circumstances. Johnson, 545 U.S. at 168. These circumstances may include: (1) the racial
identity between the defendant and the excluded venireperson; (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
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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. Williams, 173
Ill. 2d 48, 71 (1996). The court’s determination of whether a prima facie case under Batson has
been shown is a finding of fact that will not be overturned unless it is against the manifest weight
of the evidence. People v. Rivera, 221 Ill. 2d 481, 502 (2006).
¶ 18 Before considering the above listed circumstances, however, we are inclined to briefly
address the nature of defendant’s argument on appeal. Here, defendant argues trial counsel’s
objection and subsequent explanation during voir dire was sufficient to establish a prima facie
case under Batson. Defendant bases much of his argument on facts and circumstances that were
not tendered to the court by trial counsel and not available for the court’s consideration at the
time the challenge was raised. For instance, defendant cites considerations such as that Jordan
was the only African American venireperson who was questioned, that the remaining African
American venireperson was never called, that the jury was devoid of African American
representation, and that the State used one additional peremptory challenge, inter alia. “We
remind defendant, he had the burden of establishing a prima facie case of purposeful
discrimination before the trial court—not on appeal.” (Emphasis in original.) People v. Sanders,
2015 IL App (4th) 130881, ¶ 33. Neither the circuit court nor this court is tasked with
establishing defendant’s prima facie case for him. Accordingly, the propriety of the circuit
court’s finding that defendant failed to establish a prima facie case will be based on trial
counsel’s proffered argument, coupled with the relevant facts and circumstances available to the
court at the time of the challenge. See People v. Shaw, 2014 IL App (4th) 121157, ¶ 33
(providing that on remand for a Batson hearing, the circuit court may consider any notes or
8
observations it may have made contemporaneous to voir dire in addition to evidence and
argument presented by defendant).
¶ 19 1. Racial Identity
¶ 20 The parties agreed in the circuit court and now on appeal that defendant and Jordan share
the same race. See People v. Partee, 268 Ill. App. 3d 857, 865 (1994) (A party’s on-the-record
statements about the race of excluded venirepersons is an acceptable means of making a record
for Batson purposes). This fact is not dispositive as it concerns a prima facie case for racial
discrimination, but weighs in defendant’s favor. Williams, 173 Ill. 2d at 71-72.
¶ 21 2. Pattern of Strikes
¶ 22 Our supreme court has advised 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.’ ” Id. at 72 (quoting People v.
Andrews, 146 Ill. 2d 413, 429 (1992)). No such pattern existed here. In many cases, a Batson
objection arises following several peremptory strikes, such that a discernable pattern has arisen.
This consideration is irrelevant in the instant case where Jordan was the first juror stricken. See
id. (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); People v. Davis, 345 Ill. App. 3d 901, 910
(2004); Davis, 231 Ill. 2d at 361 (the mere fact of a peremptory challenge of an African
American venireperson who is the same race as defendant will not establish a prima facie case of
discrimination).
¶ 23 3. Disproportionate Strikes
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¶ 24 Next, we consider whether there was a disproportionate use of peremptory challenges
against African American venirepersons. Again, Jordan was the first juror to be excused. As
such, no disproportion could yet have existed at the time of the strike. But even if we were to
consider the circumstances after the fact, the State excused one African American venireperson
and one Caucasian venire person. This fact does not demonstrate a disproportionate use of
peremptory challenges against African Americans. See Williams, 173 Ill. 2d at 73.
¶ 25 4. Representation in the Venire as Compared to the Jury
¶ 26 Our next concern is the level of African American representation in the venire. Initially,
we note that the exact racial composition of the venire is unknown. However, the case law
instructs a party’s on-the-record statements about the race of excluded venirepersons is an
acceptable means of making a record for Batson purposes. Partee, 268 Ill. App. 3d at 865. Here,
the parties agreed that, at a glance, 2 out of the 35 potential jurors in the venire were African
American. Jordan was stricken, and the other African American potential juror was never
questioned. Based on the parties’ representations, there does not appear to have been any African
American representation on the jury. This factor weighs in defendant’s favor.
¶ 27 5. State’s Questions and Statements
¶ 28 The next relevant factor concerns the State’s questions and statements both during
voir dire and while exercising peremptory challenges. Here, the State asked each potential juror
similar general questions about subjects such as their occupation, marital status, educational
history, and family history. Defendant concedes that the State asked Jordan the same questions as
the other jurors in the panel. We agree with defendant’s assessment and find nothing remarkable
as it relates to the questions posed by the State.
¶ 29 6. Heterogeneous Group
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¶ 30 The sixth factor involves an examination of whether the excluded prospective African
American jurors were part of a heterogeneous group sharing race as their only common
characteristic. Our supreme court instructed that this sixth consideration is not mandatory where
only one potential African American juror was excluded, leaving the court with no excluded
group within which to compare any nonracial characteristics. Williams, 173 Ill. 2d at 74; see
People v. Peeples, 155 Ill. 2d 422, 470 (1993) (where only one African American potential juror
is excused, the factor regarding heterogeneity of excluded potential jurors is considered neutral).
¶ 31 7. Race of Involved Parties
¶ 32 The final relevant factor to be considered is the race of defendant, the victim, and the
witnesses. The record in this case does not provide for the race of the witnesses. However, the
parties agree that both defendant and the victim were African American. Thus, the crime was not
interracial in nature and does not support an inference that the State’s peremptory strike was
racially motivated.
¶ 33 8. Summary
¶ 34 In his effort to make a prima facie case under Batson, trial counsel argued during
voir dire that Jordan was one of two African American jurors in the venire and that based on his
characteristics, counsel believed Jordan would typically be a good candidate to serve. These
were not sufficient facts to establish a prima facie case.
¶ 35 In totality, no pattern or disproportion in the strikes existed, the prosecutor’s questions
and statements were not suggestive of discrimination, and the heterogeneity and race of the
involved parties were not suggestive of discriminatory intent. As referenced above, the usage of
one peremptory challenge to exclude an African American juror is not strongly suggestive of
racial motivation. Williams, 173 Ill. 2d at 72.
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¶ 36 Our review of the record does not reflect that trial counsel produced evidence sufficient
to permit the circuit court to draw an inference that discrimination had occurred. Thus, appellate
counsel was not ineffective for failing to raise this Batson claim on direct appeal, and
defendant’s petition failed to state an arguable claim on this basis.
¶ 37 B. Failure to Raise Collapsed Batson Inquiry Issue on Direct Appeal
¶ 38 In his second argument, defendant asserts that the court’s response to trial counsel’s
attempt to establish a prima facie case of a discriminatory purpose for the State’s strike
demonstrates that the court wrongly collapsed the first two stages of the Batson inquiry.
Defendant argues appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness for failing to set forth this argument in the circuit court. The State asserts that
defendant forfeited this argument by failing to raise it in the circuit court. We disagree with the
State’s assertion that forfeiture applies here.
¶ 39 To preserve an issue for review, both a trial objection and a written posttrial motion
raising the issue are required. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Our reading of the
record reveals a clear objection to the way the court handled Jordan’s dismissal and the filing of
a posttrial motion alleging that the court “erred in refusing to inquire as to the peremptory
challenge of prospective juror James Jordan pursuant to [Batson].” In our opinion, the thrust of
defendant’s argument, taken in totality, encompasses a claim that the court did not follow the
correct procedures when it denied defendant’s Batson challenge. It would be unfair to construe
the argument made in defendant’s posttrial motion as narrowly as the State wishes. See People v.
English, 2013 IL 112890, ¶ 22 (forfeiture should be relaxed in a proceeding on a petition for
postconviction relief where fundamental fairness so requires). Moreover, defendant skirts
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forfeiture by raising his argument as part of an ineffective assistance claim. See id. As such, we
reject the State’s forfeiture argument.
¶ 40 Citing our supreme court’s decision in People v. Wiley, 156 Ill. 2d 464, 475 (1993),
defendant correctly asserts that it is error to collapse the first two steps of a Batson inquiry into a
single procedure because doing so renders defendant’s initial prima facie showing moot.
Defendant argues the court collapsed the instant Batson inquiry in that the court suggested
reasons for the strike. In support of his argument, defendant cites to the following comments: “I
am feeling you have fallen way short of proving your prima facie case,” and
“[defense counsel] has not shown me enough that would permit me to
draw an inference of discrimination has occurred. And don’t forget that potential
juror, Jordan, is a lifetime Department of Human Services employee, and people
draw inferences from that. I mean, not good or bad, but I mean about the kind of
person that is.”
We compare the instant case to the First District’s recent holding in People v. Jones, 2021 IL
App (1st) 181266, ¶ 29, where the court instructed that a circuit court commits error if it is
unclear whether the court found defendant established a prima facie case. In Jones, defendant
alleged the circuit court improperly collapsed the distinctive phases of a Batson challenge where
the court commented about its ability to imagine race-neutral explanations for the State’s
peremptory strikes. Id. ¶¶ 26, 31. The Jones court acknowledged that unless the circuit court is
willing to advance the inquiry to the second stage, comments like these should remain unspoken.
Id. However, the court went on to reject defendant’s argument that the court’s comments were
made in passing, and that after these comments, the court clarified that it did not find a
prima facie case had been made. Id. ¶ 31. In other words, the circuit court’s ruling was
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sufficiently clear to conclude that it had not advanced the challenge to the second stage of
Batson. The same is true in the instant case.
¶ 41 We acknowledge that the court’s musings regarding the State’s reasoning for striking the
juror were inappropriate at the first stage of a Batson inquiry. However, these isolated, errant,
comments do not establish that the court improperly collapsed its Batson inquiry. First, the
comments were made within the bounds of the prima facie showing component and were a clear
response to defense counsel’s own explanation as to why the State should have accepted the
juror. Second, the State was never called upon to provide a race-neutral explanation for the
juror’s dismissal. Finally, the court clearly stated that it had based its ruling on the fact that
defendant failed to make a prima facie case. For these reasons, it is clear the circuit court did not
erroneously collapse its inquiry and counsel could not have been ineffective for failing to raise
this argument. Therefore, defendant’s petition failed to state an arguable claim on this basis.
¶ 42 C. Failure to Raise Cross-Section Challenge on Direct Appeal
¶ 43 Lastly, defendant asserts that his postconviction petition presented an arguable claim that
appellate counsel was ineffective for not raising trial counsel’s ineffectiveness on direct appeal
based on trial counsel’s failure to challenge defendant’s venire as not having been drawn from a
fair cross-section of the community. Defendant asserts that had trial counsel challenged the
composition of the venire, counsel would have successfully shown that, inter alia, the
underrepresentation of African American jurors was due to systematic exclusion. The State
disagrees, arguing a cross-section challenge, if lodged, would have been unsuccessful.
¶ 44 As stated above, appellate counsel’s failure to raise a meritorious claim may result in the
denial of a defendant’s right to effective assistance, however, it is not incompetent of counsel to
refrain from raising meritless issues. Easley, 192 Ill. 2d at 329. Thus, unless the underlying issue
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is meritorious, defendant suffers no prejudice from counsel’s failure to raise it on appeal and
cannot prevail on an ineffective assistance of appellate counsel claim. Id.¶ 45 The sixth amendment to the United States Constitution requires that petit juries be drawn
from fair cross-sections of the community. Peeples, 155 Ill. 2d at 450; U.S. Const., amend. VI.
This requirement is a means of assuring an impartial jury, not a representative one. Peeples, 155
Ill. 2d at 450. To establish a prima facie violation of the cross-section requirement, defendants
must show that:
“(1) the group allegedly excluded is a distinctive group in the community; (2) the
underrepresentation of that group in venires, from which juries are selected, is not
fair and reasonable in relation to the number of such persons in the community;
and (3) the underrepresentation is due to the systematic exclusion of that
distinctive group in the jury selection process.” Id. (citing Duren v. Missouri, 439
U.S. 357, 364 (1979)).
Defendant’s argument fails where, based on these facts, defendant’s hypothetical argument
would not have established a prima facie case.
¶ 46 On appeal, the parties agree defendant can establish the first Duren element. Regarding
the second and third Duren elements, defendant cites to the fact that just 2 of the 35 jurors in the
venire were African American, or 5.71%. Defendant juxtaposes this number with census data
providing that African Americans comprise 18.3% of the total population of Peoria County.
Based on this data, defendant flatly concludes that having only two African Americans in the
venire demonstrates a prima facie violation of the cross-section requirement. We disagree.
¶ 47 Regarding the third Duren factor, trial counsel, in his hypothetical argument, would have
needed to show that this statistical anomaly resulted from the systematic exclusion of African
15
American jurors, rather than by mere chance. See People v. Bradley, 348 Ill. App. 3d 677, 680
(2004). As such, defendant likens the instant case to Duren, 439 U.S. at 366-67 (finding the third
factor was established where petitioner showed differing compositions of jury venires over
several monthly periods relative to that during the month of the defendant’s trial) and People v.
Hollins, 366 Ill. App. 3d 533, 537, 544 (2006) (finding that defendant’s right to equal protection
and due process were violated where an audit performed by a software vendor uncovered
intentional manipulation on behalf of the jury coordinator). However, we are unwilling to
entertain the highly conjectural jump proposed by defendant that “had trial counsel engaged in a
similar investigation [to that in Hollins,] he would have arguably uncovered a systematic
exclusion.”
¶ 48 This case is similar to the Fifth District’s decision in Bradley, 348 Ill. App. 3d 677. In
Bradley, the defendant argued that counsel was ineffective because, had counsel lodged a cross-
section challenge, counsel would have uncovered a constitutionally flawed jury panel selection
process. Id. at 679. The Bradley court stated that to entertain the defendant’s argument, the court
would have to necessarily assume that because the composition of the jury venire in that case
was statistically improbable, counsel would necessarily have found a constitutionally flawed
process in assemblance of the venire if he attempted to find it. Id. at 680. The court refused to
make this assumption, as statistical anomalies may occur through random luck, and remarked,
“[w]e simply are not prepared to find trial counsel constitutionally incompetent for a potentially
phantom failing.” Id. at 682.
¶ 49 We are, likewise, unwilling to entertain defendant’s strained, hypothetical, argument.
Even if trial counsel was taken aback by the racial composition of this venire, the record contains
no further details upon which counsel could have argued the venire’s composition was the result
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of the systematic exclusion of African Americans. People v. Flowers, 132 Ill. App. 3d 939, 941
(1985) (“in the absence of evidence as [to] the method by which the venire was selected,
statistics relating to the percentage of [African Americans] in the county are insufficient to make
out a prima facie case of systematic and deliberate exclusion of [African Americans].”).
Therefore, we find that neither trial nor appellate counsel was ineffective for failing to raise a
cross-section challenge, and defendant’s petition failed to state an arguable claim on this basis.
For the aforementioned reasons, we affirm the circuit court’s summary dismissal of defendant’s
petition.
¶ 50 III. CONCLUSION
¶ 51 The judgment of the circuit court of Peoria County is affirmed.
¶ 52 Affirmed.
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