People v. Davis ( 1997 )

                               SECOND DIVISION

                               March 11, 1997

No. 1-94-1948

THE PEOPLE OF THE STATE OF ILLINOIS, )    Appeal from the

                                    )    Circuit Court of

           Plaintiff-Appellee,      )    Cook County.

                                    )

 v.                                 )

                                    )

GEORGE DAVIS,                             )    Honorable

                                    )    Daniel Kelley,

           Defendant-Appellant.     )    Judge Presiding.

 PRESIDING JUSTICE McNULTY delivered the opinion of the court:

 After a jury trial, defendant George Davis was found guilty of

first degree murder and sentenced to 50 years' imprisonment.   

Defendant contends on appeal that:  (1) the State committed a  Batson

violation;  (2)  the trial court erred in granting the State s motion

in limine preventing the defense from eliciting evidence of

occurrence witnesses' gang affiliation; (3) he was provided

ineffective assistance of counsel when his counsel failed to properly

investigate defendant s prior conviction, informed the jury that

defendant would testify, and then later attempted to explain to the

jury why defendant did not testify;  (4) the prosecutor made improper

remarks in closing argument; and (5) the trial court erred in relying

on defendant s causing or threatening serious harm as an aggravating

factor in sentencing.  We reverse and remand.

 Anthony Fisher, whose nickname was "Buck," testified that on May

29, 1991, at 1:30 a.m., he was outside of his home at 6829 S. Perry,

talking to his friend, Lethon Rogers. Fisher and Rogers talked for

about 10 or 15 minutes, and then started walking across the street.  

Fisher then saw a man whom he recognized as George Harrison slowly

driving a black and gold Trans Am down the street.  Fisher also saw

defendant, whom he knew from the neighborhood, seated on the front

passenger side of the vehicle.  Fisher testified that he had also

seen Harrison earlier that day in the Trans Am. Fisher and Rogers

thought that it was suspicious that the Trans Am was moving at a pace

of about five miles per hour and that the occupants seemed to be

looking for someone.  Fisher and Rogers therefore shouted a warning

to friends Shawn, "Kango," Emma and Sheila.   

    At around 2 a.m., Fisher and Rogers met up with a friend Leonard

Smith, and as the three stood near the front of Fisher's and Rogers'

homes, Fisher heard Kango say "Heads up," telling them to watch out.  

Rogers did not hear the warning, but Fisher looked around frantically

before he heard a shot and then saw defendant firing a gun.  The

shooting occurred about five minutes after defendant and Harrison had

slowly passed down the street.  Defendant was in a standing position

in the Trans Am, which had its t-tops open.  The first shots Fisher

saw defendant shoot were aimed at Shawn, Emma and Sheila, who were

standing about 15 to 20 feet away from Fisher.  Fisher, Rogers and

Smith hit the ground. Defendant began shooting at them.  Rogers and

Smith began running.  Two more shots were fired.  Defendant shot

towards Rogers and Smith, and defendant and Harrison sped off.  

Rogers them came running toward Fisher saying that he had been hit.

Rogers died as a result of his injuries.   

    The following day, after hearing that Fisher had witnessed the

shooting, Fisher s mother sent him to Washington, D.C.  Fisher

testified that he feared for his safety because defendant was a known

drug dealer.  Fisher lived in Washington, D.C., for six weeks prior

to beginning college in Mississippi.  Fisher returned to Chicago in

May 1992 and learned that defendant and Harrison were to be tried for

Rogers  murder.  Fisher then spoke with prosecutors and subsequently

testified at Harrison s trial.  Fisher had been arrested on an

unrelated charge following Harrison s trial.  Although a person named

Tim Hampton signed the bail bond receipt to release Fisher from jail

on that charge, Fisher testified that he did not know anyone by that

name at the address listed on the receipt.   

 Leonard Smith testified consistently with Fisher s testimony,

although Smith testified that he did not see the persons inside the

car.  Smith admitted that he had a previous conviction for possession

of a controlled substance with intent to deliver for which he

received probation in 1992.

 Detective John Halloran testified that defendant was arrested

and the Trans Am was impounded.  The fingerprints in the car were

smudged and not suitable for comparison.  Palmprints on the car s

exterior did not belong to either defendant or Harrison.  The owner

of the car did not know defendant or Harrison and reported the car

stolen three days before the shooting.   

 Donald Jenkins testified following his arrest for failure to

respond to a subpoena.  He testified that on April 19, 1993, two

years after the shooting, defendant confronted him and told him in

a threatening tone that neither he nor his daughter or grandson was

to attend the trial.  Jenkins refused to comply with this request,

and defendant reached into his back pocket, pulled out a piece of

paper and hit it against his hand.  As defendant was walking away,

he said that he should have "got" Buck (Fisher) first.

  Jenkins admitted that he had pled guilty in 1988 to burglary,

received probation, and was arrested in 1978 for the filing of a

false police report, which he explained as a misunderstanding

regarding his car and a friend who took the car without permission.  

 James Hollins testified on defendant s behalf that he was the

owner of Good Rockin  Lounge at 6950 S. Wentworth in Chicago, which

was located 2 blocks from the crime scene.   Defendant entered the

lounge at 1 a.m. on May 29, 1991.   Hollins  routine is to empty the

bar at 1:45 a.m. so that he can close at 2 a.m.  He did not know

defendant s whereabouts between 1 a.m. and when he saw him outside

the bar at about 2:15 a.m.            

 Steven Harris testified that he saw defendant at the lounge on

the night of the shooting.  Frank Holmes testified that he drank and

shot pool with defendant at the lounge on the night in question, but

they were not together the entire time.  Holmes had pled guilty in

1991 to delivery of cocaine and in 1993 to possession of a controlled

substance and unlawful use of a weapon by a felon.  Phillip Mitchell

testified that at around 2 a.m. he was in front of his mother s house

at 6943 S. Wentworth, with defendant, who had been there since the

lounge closed.  A lady came by and said someone had been shot.  

Mitchell did not recall telling an investigator that he did not know

defendant or anyone by that name, or saying that he was not a witness

to the shooting.     

 Cook County State s Attorney Investigator Thomas Shine testified

in rebuttal that he had called Phillip Mitchell and Mitchell informed

him that he did not know defendant and that he had not witnessed any

shooting.

 At the conclusion of this evidence, defendant was found guilty

of first degree murder and sentenced to 50 years  imprisonment.   

 Defendant's first claim on appeal is that a Batson violation

occurred when the State exercised peremptory challenges to dismiss

four African-American veniremembers in a racially motivated manner.  

Defendant claims that the trial court hastily ruled that the defense

had not established a prima case of discrimination, ordered the State

to provide race-neutral reasons for its challenges, and then

erroneously held that the proposed race-neural reasons were proper.  

When the defense raised its Batson claim, it stated that "[t]his is

a pretty congenial group out there as far as their background, except

for the people who lied to us."  After naming the four African-

American and one white venirepersons excused by the State, the trial

court stated that "I am not going to find that a prima facie case has

been made but I am going to ask the State to put their reasons on the

record."  After the State stated its reasons for exercising its

challenges, the trial court stated that these were legitimate race-

neutral reasons.   

 In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.

1712 (1986), the United States Supreme Court outlined the procedure

for determining whether the State used its peremptory challenges in

a racially discriminatory manner.  First, the trial court is to

determine whether the defendant has made out a prima facie case of

discrimination.  If the trial court determines that the defendant has

made a prima facie showing, the burden shifts to the State to provide

legitimate race-neutral reasons for its use of peremptory challenges

on African-American venirepersons.  Lastly, the trial court must

determine, in view of all of the relevant circumstances, whether the

defendant has demonstrated the existence of intentional racial

discrimination.  

    Defendant claims that the trial court did not follow the

procedure set forth in Batson.  Defendant claims that because the

trial court hastily determined that he had not established a prima

facie case of discrimination, asked the State to provided its

explanations for its peremptory challenges, and then ruled on the

validity of these explanations, the issue of whether a prima facie

case had been established became moot and the only issue in this

appeal is whether the court made a proper ultimate determination on

the issue of racial discrimination.   

 In Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395,

405, 111 S. Ct. 1859, 1866 (1991), the Supreme Court held that

"[o]nce a prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate

question of intentional discrimination, the preliminary issue of

whether the defendant had made a prima facie showing becomes moot."  

 The Illinois Supreme Court has applied Hernandez and found that

the prima facie issue is moot regardless of whether the trial judge

prompts the State to present neutral reasons for exercising

challenges or the State defends its use of peremptory challenges

without any prompting by the court. People v. Hudson, 157 Ill. 2d

401, 626 N.E.2d 161 (1993).  People v. Mitchell, 152 Ill. 2d 274,

604 N.E.2d 877 (1992).  

 Our case is similar to People v. Thomas, 266 Ill. App. 3d 914,

641 N.E.2d 867 (1994).  In that case, the trial court stated that,

although it did not believe that a prima facie case had been made,

it believed that some panels of the appellate court might disagree

and therefore asked the State to give its reasons for exercising its

challenges.  After the State gave its reasons, the trial court again

stated that no prima facie case had been made and then discussed why

it believed the State presented race-neutral reasons for striking

the venirepersons.  The appellate court determined that when the

trial court ruled on the ultimate issue of purposeful

discrimination, the issue of whether defendant established a prima

facie case became moot.  We reach the same conclusion here and,

thus, need only address the ultimate issue of whether there was

intentional discrimination.

 The State claimed that it excused venireperson Ruth Ewing

because defendants frequently turn themselves in to her husband,

investigative reporter Russ Ewing.  Sean McGee was excused because

he spent two years of college as a criminal justice major and the

State felt that he would be too sympathetic toward the defendant and

possibly lead the jury down the wrong path.  Willie Saffold was

removed because the State was concerned he could not pay attention

to detail since he could not remember his children's ages, he did

not work and he answered questions incorrectly on his juror

questionnaire.  We agree with the trial that these were valid

reasons for exercising peremptory challenges.   

 However, we reach a different conclusion from the trial court

on the State's excusal of Bertha White.  The prosecutor claimed that

he excused White because she "has a son approximately the

defendant's age; we felt that she would be very sympathetic towards

[defendant]."  In order to satisfy the second prong of the Batson

analysis, the prosecutor's explanation for excusing the venire-

person need not be persuasive or even plausible.  Purkett v. Elem,

514 U.S. 102, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995).  However,

the persuasiveness of the justification becomes relevant at the

third stage of the Batson proceeding when implausible or fantastic

justifications are likely to be found pretexts for discrimination.  

Purkett, 514 U.S. at _, 131 L. Ed. 2d at 839, 115 S. Ct. at 1771.   

 The record here reveals that the prosecutor's explanation for

excusing White because her son was "approximately" defendant's age

was clearly pretextual.  White's son was only 21 years old at the

time of trial, while defendant was 36 years old.  Furthermore, the

prosecutor accepted other venirepersons with children closer in age

to defendant.  The prosecutor  accepted a white juror whose son was

in his late 20s.  See People v. Harris, 129 Ill. 2d 123, 544 N.E.2d

357 (1989)(if a prosecutor strikes a minority venireperson for

possessing certain characteristics but does not reject a nonminority

juror who shares the same characteristics, there is a presumption

that the prosecutor's explanations were pretextual).  If the

prosecutor truly did not want jurors with sons close to defendant's

age, the white juror would have been the more logical venireperson

to excuse.  The State also accepted two African-American jurors

whose sons were in their middle thirties.  The fact that the sons of

these two African-American jurors matched defendant s age more

closely than White s son further underscores the fact that the

State s reason for excusing White was pretextual.   

 The State claims that the prosecutor asserted two distinct

reasons for excusing White, one, that her son was approximately

defendant's age, and two, that the prosecutor believed that she

would be very sympathetic to defendant.  Our review of the

prosecutor's explanation, quoted above, for excusing White reveals

a link between her son's age and the prosecutor's belief that she

would be sympathetic to defendant.  The prosecutor was essentially

stating that he believed White would be very sympathetic to

defendant because she had a son close to defendant s age.  The

prosecutor offered no other reason for believing White would be too

sympathetic toward defendant.  However, White certainly would be no

more sympathetic toward defendant than those chosen jurors with sons  

even closer to defendant's age.  We therefore conclude that the

State's explanation for dismissing juror White was pretextual, and

for this reason we reverse defendant's conviction and remand for a

new trial.

     We address the following issues that may arise on remand, as

well as the ineffective assistance of counsel claim, which would

have been a basis for reversal even if there had been no Batson

violation.  We first turn to the issue of whether defendant should

have been allowed to introduce testimony that the State s witnesses  

belonged to the same gang as the deceased.  Although defendant was

not a gang member, defendant claims that the State's witnesses  gang

membership was relevant to show their bias in the form of sticking

together and testifying consistently with each other, and to rebut

the impression cultivated by the State that its chief witness

Anthony Fisher, was a well-behaved college student.  

 Defendants have a constitutional right to cross-examine

witnesses for the purpose of showing bias, prejudice, or a motive to

testify falsely.  Ill. Const. 1970, art. I, 8.  While defendants

are granted wide latitude in conducting cross-examination to show

bias, a trial court may limit such an inquiry in order to avoid

harassment, prejudice, confusion of the issues, repetitive or

irrelevant testimony, or the introduction of remote or uncertain

evidence.  People v. Jefferson, 260 Ill. App. 3d 895, 631 N.E.2d

1374 (1994).  A trial court's limitation of the defendant's attempt

to show bias will be reversed only if the court abused its

discretion, resulting in manifest prejudice to defendant.  

Jefferson, 260 Ill. App. 3d at 904.             

    In support of the admission of this gang evidence, defendant

relies on People v. Gonzalez, 104 Ill. 2d 332, 472 N.E.2d 417

(1984), wherein the Illinois Supreme Court found that the trial

court erred in preventing defendant from cross-examining a key State

witness on his gang affiliation. In Gonzalez, the defendant had

recently withdrawn from gang membership.  The gang, and particularly

the key witness testifying against defendant, had threatened to

"get" defendant and his family if defendant did not renew his gang

membership.  The court found that evidence of the witness' gang

membership should have been admitted at trial since the defense

theory was that defendant was being framed and the witness had a

motive to testify falsely either to "get" defendant or to avoid

being implicated in the crime.  Therefore, evidence of the witness'

gang affiliation was relevant to the trial.

    The instant case, however, bears more similarity to People v.

Jefferson, 260 Ill. App. 3d 895, 631 N.E.2d 1374 (1994), where the

witness' gang membership was excluded since it was completely

unrelated to the crime and in no way relevant to the defense theory.  

In our case, defendant has not alleged that State witnesses had a

motive to falsely accuse him.  There was no evidence of any gang

retaliation or gang rivalry.  The issue of gangs is completely

immaterial to the case and therefore properly excluded from trial.  

Furthermore, while defendant claims that the prejudicial impact of

excluding Anthony Fisher's gang affiliation was heightened by the

fact that the prosecution portrayed Fisher as a college student, the

defendant brought into question Fisher's credibility by informing

that jury that Fisher had been charged with a crime and was out on

bail.   

 We next address whether defendant was denied effective

assistance when his counsel: (1)  informed the jury that defendant

would testify, failed to investigate whether defendant had a prior

conviction and attempted to explain to the jury why defendant did

not testify; (2) failed to elicit the fact that the State s main

witness, Anthony Fisher, had  attempted murder charges pending

against him; and (3) failed to take the steps necessary to prove up

a statement by Fisher to defense counsel that he wanted help from

the prosecutor.  A defendant receives ineffective assistance of

counsel if his counsel s performance was so deficient that his error

deprived defendant of a fair trial.  Strickland v. Washington, 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).   

    In opening statement, the defense attorney informed the jury

that they would hear from defense witnesses and defendant and that

those people would testify that, at the time of the shooting, the

defendant was at the Good Rockin' Lounge and was nowhere near the

scene of the shooting.  During the defense case, four witnesses

testified as to defendant s whereabouts on the night of the

shooting.  Defense counsel intended to have defendant testify next

but claimed that the State had surprised him by seeking to introduce

a prior conviction of the defendant of which defense counsel was

unaware.  This prior conviction was a 1986 Montana guilty plea to

two counts of criminal possession of a dangerous drug with intent to

sell.  The prosecutor informed the court that he had supplied

defense counsel with certified copies of defendant s city, state,

and federal "rapsheets," which mentioned the Montana guilty plea.   

Defense counsel did not deny receiving these sheets, but argued

instead that defendant s guilty plea was not a conviction because

the plea could have been withdrawn by defendant under certain

circumstances for a period of three years.  The three-year period,

however, had expired and the guilty plea was never withdrawn.  After

the trial court ruled that these were convictions, and that the

prosecutor could introduce them if defendant testified, defense

counsel decided to recommend to defendant that he not testify at

trial.  During closing argument, defense counsel attempted to

explain to the jury why defendant did not testify by stating that,

although they did not hear from defendant, they heard from defendant

through the four witnesses who testified.  

    We find that defendant received ineffective assistance of

counsel when his counsel informed the jury that defendant would take

the stand, although he had not investigated or obtained a ruling on

the admissibility of defendant's prior conviction, and then drew

attention to the defendant's failure to testify, when he commented

on such in closing argument.  The instant case is distinguishable

from People v. Schlager, 247 Ill. App. 3d 921, 617 N.E.2d 1275

(1993), wherein defense counsel promised the jury that defendant

would testify, but after becoming aware of defendant's credibility

problem, decided not to put on a defense, but instead argue that the

State had not proved its case beyond a reasonable doubt.  The court

in Schlager found this to be trial strategy, noting that counsel

"did not exhibit a misunderstanding of the fundamental rules of

civil procedure, nor did defense counsel fail to subject the State's

witnesses to meaningful adversarial testing, nor did defense

counsel's trial strategy contain flawed legal arguments."  Schlager,

247 Ill. App. 3d at 932.   

    Our case bears more similarity to People v. Lewis, 240 Ill.

App. 3d 463, 609 N.E.2d 673 (1992), wherein defense counsel told the

jury in opening statement that defendant gave a pretrial statement

that was exonerating.  The court determined that counsel was

ineffective in promising to produce such significant exonerating

evidence, when such evidence was clearly inadmissible, and that the

failure to fulfill such promise was highly prejudicial.        

    In the instant case, while counsel did present some exonerating

evidence as to defendant's whereabouts at the time of the shooting,

he did not present the most important piece of evidence he had

promised to produce, defendant's testimony.  The impact of a

defendant's testimony and the weight given to such testimony by a

jury is certainly greater than that of an ordinary witness.  

Furthermore, it was defense counsel's own failure to investigate

defendant's plea or obtain a ruling from the court on whether the

plea was a conviction, prior to opening statement, that caused his

promise to the jury to be unfilled.  This cannot be deemed trial

strategy.  Had the prosecutor been the one to comment on defendant's

failure to testify, this would clearly have been prejudicial error.  

Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct.

1229 (1965).  Here, defendant was prejudiced by his own counsel's

emphasis on defendant's failure to testify.  This error alone would

have given us sufficient basis to reverse defendant's conviction.   

 Turning to defendant's next claim of ineffective assistance of

counsel, we do not find that counsel was ineffective in failing to

elicit the fact that the State's chief witness, Anthony Fisher, had

attempted murder charges pending against him.  Rather, we find this

to be trial strategy.  Had counsel introduced evidence of Fisher s

pending attempted murder charges in order to show that Fisher s

testimony was motivated by a desire to obtain favorable treatment

from the State, the State would have elicited evidence from Fisher

that, prior to being charged, he had testified at codefendant

Harrison s trial consistently with how he had testified at

defendant s trial.  Thus, defendant would have derived no benefit

from defense counsel eliciting evidence of Fisher s charge.   

    Defendant also claims that his counsel was ineffective in

failing to take the steps necessary to prove up a statement by

Fisher to defense counsel during a pretrial interview that Fisher

wanted help from the prosecutor on his pending charge for attempted

murder.  Fisher denied making this statement, and the trial court

determined that defendant could only prove up this conversation if

defense counsel disqualified himself and then became a witness at

trial.  Defense counsel instead chose not to prove up the

conversation.  The trial court then struck the question and answer

regarding the conversation.  It is our opinion that counsel's

decision to remain in the case rather than withdraw can indeed be

considered trial strategy.   

 Defendant also claims find that the prosecutor made several

improper comments in closing arguments.  We agree and find that the

following comments must not be repeated on retrial.  The prosecutor

improperly voiced his personal opinion and used the integrity of the

State's Attorney's office when he commented that defense witnesses

were the worst liars he had ever seen testify for a defendant.   See

People v. Valdery, 65 Ill. App. 3d 375, 381 N.E.2d 1217 (1978) (the

prosecutor's repeated comments that the State's witnesses had the

highest integrity and character he had ever seen were held to be

highly prejudicial because they placed the integrity of the State's

Attorney behind the witnesses).          

 The prosecutor also improperly implied that an expert cannot be

cross-examined with another expert's prior diagnosis and shifted the

burden of proof when he commented that the defense attacked the

State's expert pathologist through cross-examination rather than by

the defense presenting its own expert.  An expert may be impeached

with another expert's report (People v. Silagy, 101 Ill. 2d 147, 461

N.E.2d 415 (1984), and the defense had no obligation to call any

witnesses.   

 The prosecutor also improperly argued facts not in evidence when

he stated that the Trans Am owner's fingerprints were not found in

the car and that Fisher had stated at a previous trial that

defendant was the shooter.  We also note that the prosecutor

improperly showed extreme disdain for the defense by stating in

closing argument, "[t]his is how worthless this piece of paper is,"  

and crumpling up a defense exhibit which the court had admitted into

evidence.     

   Finally, we note that if defendant is again found guilty, the

trial court can consider as an aggravating factor the force employed

and the manner in which the crime was committed, but it must not

consider that defendant's conduct caused serious harm, since this is

inherent in the offense of murder.  People v. Saldivar, 113 Ill. 2d

256, 497 N.E.2d 1138 (1986).

 Accordingly, for the reasons set forth above, defendant s

conviction is reversed and this cause is remanded for a new trial.

 Reversed and remanded.

 Gordon, J., concurs.

 Hourihane, J., dissents.

 Justice Hourihane, dissenting:

 The majority concludes that the State's explanation for excusing

veniremember Bertha White was "clearly pretextual" and thus

necessitated the reversal of the defendant's conviction and

sentence.  In reaching this conclusion, the majority notes that when

asked to proffer a basis for his challenge of Ms. White, the

prosecutor indicated that he was challenging her because she had a

son approximately the defendant's age and he felt that she would be

sympathetic toward the defendant.  The majority then concludes that

this reason was "clearly pretextual" because a white member of the

jury who also had a son approximately the defendant's age was not

challenged by the State.   

 I respectfully disagree for the reasons which follow.  First, the

courts of this state have repeatedly recognized that the State may

legitimately exercise a peremptory challenge to exclude a

prospective juror because he or she has children of an age close to

the defendant's. See People v. Andrews, 155 Ill. 2d 286 (1993);

People v. Lovelady, 221 Ill. App. 3d 829 (1991); People v. Baisten,

203 Ill. App. 3d 64 (1990); People v. Batchelor, 202 Ill. App. 3d

316 (1990).  Accordingly, there is nothing inherently suspicious or

pretextual about the State offering such a reason for excluding a

potential juror.

 Second, it would be improper for us to assume, as the majority

does, that the trial court erred in finding an absence of

discriminatory intent merely because the State accepted a white

juror who possessed a similar characteristic.  As our supreme court

stated in People v. Wiley, 165 Ill. 2d 259 (1995):

      "In reviewing the reasons given by the State, it is

    necessary to bear in mind that '"in many instances there

    will be no single criterion that serves as the basis for

    the decision whether to excuse a particular venireman."'

    (People v. Mitchell (1992), 152 Ill. 2d 274, 295, quoting

    People v. Mack (1989), 128 Ill. 2d 231, 239.)  The

    State's purposeful discrimination is not automatically  

    established by the mere coincidence that an excluded

    juror shared a characteristic with a juror who was not

    challenged.  The excluded juror may possess an additional

    trait that caused the State to find him unacceptable,

    while the juror who was not challenged may possess an

    additional characteristic that prompted the State to find

    him acceptable to serve as a juror. [Citation]  '[A]

    peremptory challenge is based on a combination of traits,

    and a juror possessing an unfavorable trait may be

    accepted while another juror possessing that same

    negative trait, but also possessing other negative

    traits, may be challenged.' Mitchell, 152 Ill. 2d at

    295." People v. Wiley, 165 Ill. 2d at 282-83.  

      In this case, the State did not challenge white veniremember

Angelo Baez though he also had a son close to the age of the

defendant.  While this fact may raise an inference of purposeful

racial discrimination, such is not dispositive. People v. Mack, 128

Ill. 2d 231.  The record reveals that at least three members of the

actual jury had children close to the defendant's age.  Mr. Baez,

a white resident of the north side of Chicago was married and had

a 28-year-old son who was ser