People v. Coulter , 345 Ill. App. 3d 81 ( 2003 )

JUSTICE GALLAGHER

delivered the modified opinion of the court upon denial of rehearing:

On March 3, 2003, the United States Supreme Court vacated this court’s judgment in People v. Coulter, 321 Ill. App. 3d 644, 748 N.E.2d 240 (2001) (Coulter II), and remanded the case to this court for further consideration in light of its decision in Miller-El v. Cockrell, 537 U.S. 322, 154 L. Ed. 2d 931, 123 S. Ct. 1029 (2003). For the reasons stated herein, we affirm.

Although our previous opinion included a comprehensive summary of the state and federal court proceedings that have preceded this action, a brief review of the case’s 16-year procedural history is warranted here. In 1987, Dwayne Coulter, an African-American, was convicted of the first degree murder of a white police officer. On appeal, Coulter contended that the State’s use of peremptory challenges to strike African-American venire members violated Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). This court rejected Coulter’s arguments and affirmed his conviction, finding that although a prima facie case of discriminatory jury selection was made, the trial court was not clearly erroneous in concluding that no intentional discrimination occurred. People v. Coulter, 230 Ill. App. 3d 209, 229, 594 N.E.2d 1163, 1176 (1992) (Coulter I). The Illinois Supreme Court denied Coulter’s petition for leave to appeal. People v. Coulter, 146 Ill. 2d 636, 602 N.E.2d 461 (1992). Coulter proceeded to federal court, where the Seventh Circuit remanded the case to the state trial court for a new Batson hearing. Coulter v. Gilmore, 155 E3d 912, 922 (7th Cir. 1998) (Gilmore).

On remand, the trial judge, who was not the same jurist who presided at Coulter’s trial, reviewed Coulter’s Batson claim, along with the record of jury selection in Coulter’s trial. The trial court found that the State’s articulated reasons for excusing the African-American jurors were race-neutral and not pretextual. Coulter again appealed to this court, contending that the State failed to meet its burden of showing that legitimate, race-neutral explanations existed for each of the nine peremptory challenges used to excuse African-American venire members. Coulter asserted that the trial court did not conduct a sufficient Batson hearing on remand. Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248. Coulter sought a new trial or, in the alternative, asked this court to remand the case to the trial court for another Batson hearing. Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248. This court affirmed, finding that the trial court conducted a comprehensive review of his Batson claims. Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250. The Illinois Supreme Court again denied Coulter’s petition for leave to appeal. People v. Coulter, 196 Ill. 2d 551, 763 N.E.2d 321 (2001). He appealed to the United States Supreme Court, which has vacated Coulter II and remanded the case to this court for further consideration in light of Miller-El. Coulter v. Illinois, 537 U.S. 1230, 155 L. Ed. 2d 194, 123 S. Ct. 1384 (2003).

Miller-El v. Cockrell

A Texas jury convicted petitioner Thomas Miller-El of capital murder and sentenced him to death. Miller-El, 537 U.S. at 328, 154 L. Ed. 2d at 944, 123 S. Ct. at 1034-35. After raising an unsuccessful Bat-son claim in the state and federal courts, Miller-El filed a petition for writ of habeas corpus. Miller-El, 537 U.S. at 329, 154 L. Ed. 2d at 945, 123 S. Ct. at 1036. Both the federal district court and the Fifth Circuit Court of Appeals denied Miller-El’s request for habeas relief. Miller-El v. Johnson, 261 F.3d 445, 452 (5th Cir. 2001).

In its opinion in Miller-El, the Supreme Court addressed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (28 U.S.C. § 2241 et seq. (2000)), which restricts the power of federal courts to grant habeas relief to state prisoners. Miller-El, 537 U.S. at 337, 154 L. Ed. 2d at 950, 123 S. Ct. at 1039-40. Under the AEDPA, MillerEl’s right to the review of the denial of his habeas petition is not automatic. Miller-El, 537 U.S. at 335-36, 154 L. Ed. 2d at 949, 123 S. Ct. at 1039. For a federal appeals court to consider the merits of Miller-El’s appeal, Miller-El must seek a certificate of appealability (COA) to review the district court’s ruling. The COA requirement is designed as a threshold for review of appeals and is intended to reduce delay caused by frivolous habeas proceedings. To issue a COA, the court must find that the petitioner demonstrated “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). In denying Miller-El’s request for a COA, the Fifth Circuit Court of Appeals noted that a “substantial showing” occurs when a petitioner has raised issues that are “debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are adequate to deserve encouragement to proceed further.” Miller-El v. Johnson, 261 F.3d at 449, citing Slack v. McDaniel, 529 U.S. 473, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000).

Ruling on Miller-El’s case, the United States Supreme Court stated that “[a]t issue here are the standards AEDPA imposes before a court of appeal may issue a COA to review a denial of habeas relief in the district court.” Miller-El, 537 U.S. at 327, 154 L. Ed. 2d at 943-44, 123 S. Ct. at 1034. The Court noted that a COA ruling does not weigh the merits of a petitioner’s claim but instead involves “an overview of the claims in the habeas petition and a general assessment” of the merits of the petition. Miller-El, 537 U.S. at 336, 154 L. Ed. 2d at 950, 123 S. Ct. at 1039. For a COA to issue, the petitioner need not show he is entitled to ultimate relief; instead, he must show that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040.

Applying that standard to the facts of Miller-El’s case, the Court reviewed his Batson claim and held that Miller-El was entitled to a COA because it was debatable that purposeful discrimination occurred in jury selection. Miller-El, 537 U.S. at 341-48, 154 L. Ed. 2d at 952-57, 123 S. Ct. at 1042-45. The Supreme Court reversed the Fifth Circuit Court of Appeals and remanded the case to the federal district court for further proceedings. Miller-El, 537 U.S. at 348, 154 L. Ed. 2d at 957, 123 S. Ct. at 1045.

Analysis

At the request of this court, the office of the State Appellate Defender and the office of the Cook County State’s Attorney have submitted briefs addressing Miller-El’s applicability to Coulter’s case.¹ The Appellate Defender contends that although Miller-El discussed the issue of a COA, the Supreme Court also “articulated the relevant factors to be considered in analyzing a third-stage Batson violation.” The State asserts that Miller-El involves a federal habeas corpus proceeding governed by the AEDPA and that Miller-El recognizes the same three-step Batson analysis that the trial court used on remand in Coulter’s case.

We first address the procedural postures of both cases and find that the AEDPA-related discussion in Miller-El does not relate to Coulter’s proceedings. As the Seventh Circuit previously recognized in Gilmore, Coulter’s habeas petition was considered using pre-AEDPA standards because the petition was filed in 1993, prior to the effective date of the AEDPA. Gilmore, 155 F.3d at 917; Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). Under that preAEDPA standard, when reviewing a Batson claim via a habeas petition, a factual determination made after a hearing on the merits is entitled to a presumption of correctness if fairly supported by the record as a whole; however, that presumption could be rebutted by convincing evidence. 28 U.S.C. § 2254(d) (1994). In Gilmore, the Seventh Circuit gave the state court’s findings of fact a presumption of correctness but held that Coulter’s Batson rights were denied and remanded the case for another hearing. Gilmore, 155 F.3d at 921-22. The Seventh Circuit stated that it expressed “no opinion on how [Coulter’s Batson claims] would be resolved under the far more deferential rules established by the AEDPA.” Gilmore, 155 F.3d at 922.

Secondly, we have reviewed Coulter’s petition for writ of certiorari, which led to the Supreme Court’s vacatur of Coulter II and the remand of this case for our further consideration. In the petition, the Appellate Defender asked the Supreme Court to “clarify the proper analysis for third-stage Batson review and give guidance to the lower courts on correct ‘totality of the circumstances’ evaluation.” At the close of the petition, the Appellate Defender asks the Supreme Court to grant certiorari to “give guidance to the lower courts on what constitutes purposeful discrimination under Batson.”

As previously noted, the Supreme Court has ordered this court to further consider its opinion in Coulter II in light of Miller-El. We therefore consider whether Miller-El demands a substantive change in the Batson analysis that the trial court used on remand. Having given the Supreme Court’s order due weight and consideration, and having carefully reviewed Miller-El and its relevance to Coulter’s case, this court respectfully concludes that the Court’s ruling in Miller-El does not affect the validity of the trial court’s analysis of Coulter’s Batson claims.

In Miller-El, the Court analyzed the standard to be used in determining when a federal appellate court may issue a COA to review a federal district court’s denial of habeas relief. Miller-El, 537 U.S. at 327, 154 L. Ed. 2d at 943-44, 123 S. Ct. at 1034. As the Appellate Defender acknowledges, in Miller-El, the Court addressed the issue of whether the petitioner could appeal the denial of his habeas petition and whether a COA should have issued. Miller-El, 537 U.S. at 327, 154 L. Ed. 2d at 944, 123 S. Ct. at 1034. The Court referred to its analysis as a “threshold” examination and specifically noted that “[w]hile a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim, our determination to reverse the Court of Appeals counsels us to explain in some detail the extensive evidence concerning the jury selection procedures.” Miller-El, 537 U.S. at 331, 346-48, 154 L. Ed. 2d at 946, 956-57, 123 S. Ct. at 1036, 1044-45.

Therefore, the Court in Miller-El admittedly did not base its ruling on the merits of Batson but instead discussed whether Miller-El offered enough evidence to support the issuance of a COA, which would allow Miller-El to appeal the district court’s denial of his habeas petition. Moreover, in considering that question, the Court outlined the same three-step Batson analysis that this court used in Coulter II. First, the defendant must make a prima facie showing that a peremptory challenge was exercised on the basis of race. Miller-El, 537 U.S. at 328, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. To do so, the defendant must prove three factors: (1) he or she is a member of a cognizable racial group; (2) the prosecutor exercised peremptory challenges to remove members of defendant’s race from the venire; and (3) sufficient facts and circumstances existed to raise an inference that the prosecution used the peremptory challenges to exclude veniremembers on the basis of race. Coulter II, 321 Ill. App. 3d at 654-55, 748 N.E.2d at 249, citing Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723. If that showing has been made, the State must articulate race-neutral justifications for striking the potential juror at issue. Miller-El, 537 U.S. at 328, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. The third stage of Batson arises when the trial court considers those reasons and determines if the defendant has established purposeful discrimination. Miller-El, 537 U.S. at 328-29, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035.

Noting that it was at the third stage of a Batson analysis, the Court stated in Miller-El that the key issue was the credibility of the prosecutor’s race-neutral explanations. Miller-El, 537 U.S. at 339, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040. The Court stated that the trial judge did not engage in a credibility analysis because Miller-El’s trial occurred prior to its own decision in Batson. Instead, the trial court followed the then-precedent of Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), which only required the judge to examine whether the prosecution’s use of peremptory challenges was part of a pattern of discrimination. Miller-El, 537 U.S. at 328, 154 L. Ed. 2d at 944, 123 S. Ct. at 1035. In a pretrial hearing held pursuant to Swain, Miller-El had presented both direct and historical evidence of a pattern and practice of discrimination in voir dire in that particular court system at the time of Miller-El’s trial. Miller-El, 537 U.S. at 331, 154 L. Ed. 2d at 946, 123 S. Ct. at 1036. Miller-El’s counsel presented the testimony of current and former prosecutors and judges who testified they were instructed to exclude African-Americans from jury service. Miller-El, 537 U.S. at 334-35, 154 L. Ed. 2d at 948, 123 S. Ct. at 1038. In addition, at a hearing held two years after Miller-El’s trial, the original trial judge admitted the evidence offered at the Swain hearing and heard additional evidence in order to consider Miller-El’s claims under Batson. Miller-El, 537 U.S. at 329, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. Miller-El presented evidence that the prosecutors questioned African-American and Caucasian veniremembers differently regarding their views on capital punishment. Miller-El. 537 U.S. at 331-32, 154 L. Ed. 2d at 946-47, 123 S. Ct. at 1036-37.

The Court noted that although the prosecutors had offered race-neutral justifications for their strikes, the trial court did not consider the credibility of the explanations because Swain did not so require. Miller-El, 537 U.S. at 342-43, 154 L. Ed. 2d at 953-54, 123 S. Ct. at 1042. The Court stated that statistical evidence raised a question as to whether African-American venire members were excluded based solely on their race, noting that only one African-American served on the jury and “prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members,” with 10 of the 14 strikes used against African-Americans. Miller-El, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042. Applying the AEDPA to MillerEl’s case and noting that its task was to consider the debatability of his claim and not to resolve that debate, the Court held that “the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason.” Miller-El, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042. In addition, the Court noted that two white jurors who had “expressed ambivalence about the death penalty” were empaneled, while six African-American venirepersons also stated such a position. Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043. Noting that the prosecutors’ reasons for striking the African-American jurors appeared race-neutral, the Court stated:

“Whether a comparative juror analysis would demonstrate the prosecutors’ rationales to have been pretexts for discrimination is an unnecessary determination at this stage, but the evidence does make debatable the District Court’s conclusion that no purposeful discrimination occurred.” Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043.

The Appellate Defender argues that Miller-El requires this court to remand Coulter’s case for a new trial or for another third-stage Batson hearing. The Appellate Defender contends that in Coulter’s case, neither the original trial judge nor the judge who considered Coulter’s Batson claims on remand made any credibility findings. The Appellate Defender further asserts that in reviewing the trial court’s findings on remand, this court did not adequately consider the pattern of strikes against African-Americans, as the Supreme Court did in Miller-El. In addition, the Appellate Defender claims that this court failed to consider the prosecutors’ demeanor, the reasonableness or improbability of the prosecutors’ race-neutral explanations and whether the explanations had some basis in trial strategy.

We first address the assertion that Miller-El requires that every Batson inquiry include a “comparative juror” analysis in which a court specifically considers the strikes against African-American veniremembers compared to similarly situated Caucasian potential jurors. In United States v. Smith, 324 F.3d 922 (7th Cir. 2003), the opposite conclusion was reached. Citing Miller-El, the Seventh Circuit stated that a comparison of similarly situated jurors is “only one of many permissible factors” and “was not determinative” in that case. Smith, 324 F.3d at 927. We agree with Smith that a comparison of minority and nonminority jurors can be illustrative; however, it may not always be conclusive. As stated in Coulter I, “a venireperson may be similar in one respect to an accepted juror, yet possess a characteristic which justifies a peremptory challenge based on the totality of the circumstances.” Coulter I, 230 Ill. App. 3d at 228, 594 N.E.2d at 1176.

Next, the Appellate Defender claims that Coulter II lacked any such “comparative juror” analysis and that, to this date, “no court has engaged in a proper Batson review, including a comparative analysis of the challenged minority venirepersons and the similarly situated nonminority jurors.” The 16-year history of this case indicates otherwise. In Coulter I, authored in 1992 by the same justice who now dissents from this opinion, this court specifically and expressly considered the voir dire of each minority venire member and the State’s proffered reasons for rejecting that individual. Coulter I, 230 Ill. App. 3d at 225-29, 594 N.E.2d at 1174-76. For example, in its third-stage Batson analysis in regard to minority venire member Melanie Pinkins, the court in Coulter I stated:

“The State sought to exclude Pinkins because her mother worked at Mercy Hospital, where Dr. Hemmerich (who was named as a possible defense witness) spent between five and six years of his career. Defendant argues that this explanation is pretextual, but the State’s explanation may be fairly read as a concern that Pinkins might give more credibility to Dr. Hemmerich because he had worked at the same hospital as her mother. The same could not be said of any of the accepted venirepersons.” (Emphasis added.) Coulter I, 230 Ill. App. 3d at 228-29, 594 N.E.2d at 1176.

Coulter I conducted analyses of each of the other eight excluded minority venire members, considering the reasons that the State offered for challenging each juror and finding the reasons to be legitimate and nonpretextual. Where the excused minority venire member was similarly situated to an accepted juror, the court addressed the commonality and concluded that the rejected minority venire member’s characteristics legitimately justified his or her exclusion. Coulter I, 230 Ill. App. 3d at 225-29, 594 N.E.2d at 1174-76.

Minority venire members Anthony Powe and Kevin Archibald were excluded for cause because they failed to admit to previous criminal charges when asked. When Coulter argued on appeal that the State accepted a Hispanic venireperson who had been charged with burglary, the court in Coulter I noted that the failure to admit prior criminal charges is a sufficient race-neutral reason for exclusion and that the accepted venire member had admitted his charge when asked. Coulter I, 230 Ill. App. 3d at 226, 594 N.E.2d at 1174.

Melvin Igess was excused based on his employment record and the fact that he fathered children with two different women. When Coulter argued on appeal that no nonminority male jurors were asked about the paternity of their children, the court in Coulter I stated:

“In this case, defendant has failed to demonstrate that [two non-minority venire members were] similar to Igess as to both employment and paternity. Thus, a peremptory challenge against a person with both characteristics could be justified.” Coulter I, 230 Ill. App. 3d at 228, 594 N.E.2d at 1176.

April Rhem was excluded because of her employment record, and the defense argued that reason was pretextual because Rhem’s employment record was consistent with her student status. Coulter I, 230 Ill. App. 3d at 227, 594 N.E.2d at 1175. The court found race was not a motivating factor in Rhem’s dismissal because a minority venire member who was selected as an alternate juror was a student. Coulter I, 230 Ill. App. 3d at 227, 594 N.E.2d at 1175.

The remaining minority venire members also were excluded for reasons that the court in Coulter I held were legitimate and race-neutral. Edward Terry was excluded because he indicated he was uncomfortable with the death penalty. Coulter I, 230 Ill. App. 3d at 225-26, 594 N.E.2d at 1174. Marcina Adams was excluded because of her employment as a nurse. Coulter I, 230 Ill. App. 3d at 226, 594 N.E.2d at 1174. Teresa Brantley was excluded due to her unemployment, and Jeanell Hicks was excluded for her hesitation in answering questions in voir dire. Coulter I, 230 Ill. App. 3d at 227-28, 594 N.E.2d at 1175. The court in Coulter I affirmed those dismissals as sufficiently race-neutral. Coulter I gives no indication that defendant argued to the original trial judge that Terry, Adams, Brantley or Hicks was similarly situated to nonminority venire members who were selected to serve on Coulter’s jury. The court concluded: “In sum, defendant has failed to demonstrate from the record that the trial court’s determination of no intentional discrimination was clearly erroneous.” Coulter I, 230 Ill. App. 3d at 229, 594 N.E.2d at 1176.

The Appellate Defender reiterates that the State used its first six challenges to strike minority venire members and the “State’s use of peremptory challenges reduced African-American representation from a majority of the jury to a minority.” It is undisputed that a defendant is entitled to jury selection free from racial discrimination, as Batson holds. However, we are unaware of any ruling that a defendant is entitled to a jury that contains more minority jurors than nonminority jurors. The Appellate Defender also again points out that 9 out of 10 African-American venirepersons were struck; however, that statistic is not relevant to the third stage of Batson. That factor relates to the first stage of Batson, when a trial judge determines whether a prima facie case of purposeful racial discrimination has been established and considers all “relevant circumstances,” including a pattern of strikes against minority venire members, a disproportionate use of strikes against such individuals, and the level of minority representation in the venire as compared to the jury. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; Coulter I, 230 Ill. App. 3d at 222, 594 N.E.2d at 1172. In Coulter I, this court considered those factors and held that a prima facie showing of discrimination was made. Coulter I, 230 Ill. App. 3d at 224, 594 N.E.2d at 1173.

In addition to that analysis, the trial court on remand from Gilmore expressly considered the credibility of the prosecutor’s proffered reasons for striking particular jurors. Coulter II, 321 Ill. App. 3d at 652, 748 N.E.2d at 247. The court stated that it had reviewed the transcripts of the original jury selection. Coulter II, 321 Ill. App. 3d at 652, 748 N.E.2d at 247. The court was provided with the prosecution’s reasons for striking all of the challenged jurors and considered the credibility of those reasons under a “totality of the circumstances” test. Coulter II, 321 Ill. App. 3d at 652, 748 N.E.2d at 247. The court compared and contrasted the jurors who were selected with those in the venire. Coulter II, 321 Ill. App. 3d at 652-53, 748 N.E.2d at 247. In addition, the court expressly considered the number of African-American jurors selected in relation to the number of African-Americans in the venire. Coulter II, 321 Ill. App. 3d at 652-53, 748 N.E.2d at 247. Three African-American jurors sat on the twelve-person jury, with two additional African-Americans serving as alternate jurors. Coulter II, 321 Ill. App. 3d at 653, 748 N.E.2d at 247. Thus, 5 members of the 14-member jury (35%) were African-Americans, a greater percentage of minorities than that in the venire as a whole (16 African-Americans out of 55 venirepersons, or 29%). Coulter II, 321 Ill. App. 3d at 652-53, 748 N.E.2d at 247. After completing that analysis, the trial court correctly concluded that the jury selection in Coulter’s case did not violate Batson.

The dissent quotes Miller-El’s reference to the “risks of imprecision and distortion from the passage of time” (Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043) and states that the trial judge who reviewed Coulter’s claims on remand “was confronted with a cold record of voir dire and was in no better position than this court to review it.” 345 Ill. App. 3d at 98. The dissent contends that this case should be remanded to the trial court to properly address the claim of disparate treatment of jurors. To this point, Coulter’s Batson claims have been substantively considered and rejected on direct appeal in Coulter I (by the judge now dissenting), by the trial court on remand from the Seventh Circuit in Coulter v. Gilmore, and again by this court in Coulter II. The dissent fails to acknowledge its author’s previous acceptance of Coulter’s jury or explain how a repeated analysis of the same record would affect its view.

In summary, because the Supreme Court’s discussion of the AEDPA does not relate to Coulter’s proceedings, because the Supreme Court did not alter the third-stage Batson analysis, and because the trial court previously performed a thorough review of Coulter’s Batson claims under a totality of the circumstances test, we affirm the decision of the trial court.

Affirmed.

O’BRIEN, J., concurs.

1 We also have considered the Appellate Defender’s petition for rehearing, as well as the dissent, which was not filed until after the issuance of the majority opinion.