|
People v. Edwards, No. 2-96-1436 2nd Dist. 12/31/98 |
No. 2--96--1436
December 31, 1998.
______________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
___________________________________________
__________________________
OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. EDWARDS, Defendant-Appellant. of Lake County. No. 96--CF--42 Honorable Christopher C. Starck, Judge,
Presiding. JUSTICE THOMAS delivered the opinion of the
court: On January 17, 1996, defendant, James Edwards, was
indicted on three counts of first-degree murder (720 ILCS 5/9--1 (West 1994)).
Following a jury trial, defendant was convicted of first-degree murder and was
sentenced to a term of mandatory natural life imprisonment. This timely appeal
followed. On December 9, 1994, 71-year-old Fred Reckling was
found beaten to death inside Grand Appliance, a store he owned in Waukegan,
Illinois. No arrests were made in connection with the murder. Thirteen months
later, on January 4, 1996, defendant was taken into custody for questioning
related to an armed robbery of the Roberts Roost Motel in Waukegan. Defendant
confessed to the armed robbery and then indicated to the officers that he had
been involved in other criminal incidents. In a signed statement, defendant said
that he got out of prison in 1991 after serving 17 years for murder and admitted
to numerous other crimes, including an armed robbery of the Best Inn Hotel in
Waukegan, an armed robbery of Hair Crafters beauty salon, and a burglary of a
store at South and Genesee in Waukegan. Defendant also confessed to the murder
of a man in New York in 1973 and the murder of a woman in Shaker Heights, Ohio,
in 1974. Defendant also admitted to an armed robbery of a man in North Chicago
approximately two years earlier. Defendant then said that more incidents had
happened since he had been released from jail, possibly including more murders,
but said that he needed time to think because he sometimes was so high he had
trouble remembering the details. Later in the interrogation, defendant admitted his
involvement in the 1995 robbery of First American Bank in Waukegan. Defendant
signed a statement confessing to that robbery. Defendant eventually admitted
that he had committed the murder of Fred Reckling at the Grand Appliance store.
He subsequently signed a typewritten statement confessing to the murder and was
videotaped while reading the statement. Defendant now raises numerous issues on
appeal relating to his interrogation and trial. Additional relevant facts will
be discussed in the context of the issues raised on appeal. Defendant's first issue on appeal is that the
State's peremptory challenges against two African-American venire members,
Robert L. Hollins, Jr., and Samuel Holmes, violated the equal protection clause
as interpreted by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986). Defendant maintains that the standard applied by the trial
court to determine whether defendant established a prima facie
case of discrimination imposed a burden on him that had been overruled in
Batson. Defendant contends that this case should be remanded to the
trial court for a proper Batson hearing. The basis for defendant's argument that the trial
court applied an improper standard is a comment by the trial court that
defendant had not shown a pattern of discrimination by the State. Defendant
claims that this case in similar to People v. Wiley, 156 Ill. 2d 464
(1993), where the Illinois Supreme Court remanded the case for further
Batson proceedings based in part upon the trial court's finding that
the State had not excused African-Americans in any systematic manner. The
supreme court stated that the trial court's remarks were reminiscent of the
outdated standard applied in Swain v. Alabama, 380 U.S. 202, 13 L. Ed.
2d 759, 85 S. Ct. 824 (1965), where a defendant had to prove that a prosecutor
engaged in the exclusion of African-Americans in case after case, rather than in
his case alone. Wiley, 156 Ill. 2d at 474. The court stated that while
it could not conclude that the trial court had actually applied the outdated
Swain test, it found the trial court's remarks to be improper and
misguided. Because the trial record was insufficient to conduct a de
novo review, the trial court's remarks, along with two additional
factors, required a remand to the trial court for further Batson
proceedings. Wiley, 156 Ill. 2d at 474-75. We do not find the trial court's comments in this
case to be similar to the comments of the trial court in Wiley. In
responding to defendant's objections to the State's peremptory challenges to
venire member Robert L. Hollins, Jr., the trial court told defense counsel that
he "[had] to get a prima facie showing to get past the issue.
You have to start with a prima facie showing of the
discriminatory issue by the State." Defense counsel again noted that Hollins's
answers had been without hesitation, and the trial court again said that there
had been no prima facie showing of discrimination. Later, when defendant objected to the peremptory
challenge to venire member Samuel Holmes, the following colloquy
ensued: Defense counsel then noted that Holmes was the last
African-American person remaining in the venire and urged the court to ask the
prosecutors to offer a race-neutral reason for their exercise of a peremptory
challenge to exclude him from service. The judge denied the defense objection,
ruling: A Batson inquiry involves a two-step
process. A defendant must first set forth a prima facie case
of discrimination, and only when a defendant has made out a prima
facie case does the trial court call upon the State to set forth its
reasons for the peremptory challenge. Wiley, 156 Ill. 2d at 475. Here,
the trial court clearly stated six times that defendant had to prove a
prima facie case of discrimination and that the defendant had
not done so. Based upon our review of the record, we do not find that the trial
court imposed an improper burden on defendant when it referred to a pattern. In
fact, we note that one of the relevant factors in determining whether a
defendant has made out a prima facie case is "whether the
State engaged in a 'pattern' of challenges against African-Americans."
Wiley, 156 Ill. 2d at 473. Given the trial court's repeated statement
that defendant had to make a prima facie case, and reviewing
the trial court's reference to a "pattern" in context, we find that the trial
court was addressing one of the factors relevant to a prima
facie determination when it referred to a "pattern" of discrimination
and was not placing an improper burden on defendant. Defendant also claims that this case should be
remanded for further Batson proceedings because the trial court erred
in finding that he had not established a prima facie case of
discrimination. Defendant claims that a prima facie case of
discrimination existed because defendant is an African-American and two
African-Americans were excused by the State. Defendant claims that the two
challenged venire members showed no prejudice and that the State never explained
the reasons for the challenges. "It is settled that a Batson prima
facie case cannot be established merely by the numbers of black
venirepersons stricken by the State." People v. Peeples, 155 Ill. 2d
422, 469 (1993). To make a prima facie showing of
discrimination under Batson, a defendant must demonstrate that relevant
circumstances raise an inference that the State used peremptory challenges to
remove venire members based upon their race. People v. Williams, 173
Ill. 2d 48, 71 (1996). Among the relevant circumstances are whether there was a
pattern of strikes against African-American venire members, whether there was a
disproportionate use of strikes against such members, the level of
African-American representation in the jury venire as compared to the jury, the
questions and statements of the State during voir dire, and
the race of the defendant, the victim and the witnesses. People v.
Garrett, 139 Ill. 2d 189, 203 (1990). A trial court's determination of
whether a defendant has made a prima facie case will not be
reversed unless it is against the manifest weight of the evidence.
Williams, 173 Ill. 2d at 71. In his brief, defendant does not discuss any of the
relevant circumstances that raise an inference of discrimination. Rather,
defendant relies upon the fact that he and venire members Hollins and Holmes
were all African-American and that Hollins and Holmes had indicated that they
could be fair and impartial. Further, in response to the State's discussion of
the relevant circumstances in its response brief, defendant contends that those
circumstances are of "questionable relevance" here and again asserts that the
relevant factor is that Hollins and Holmes indicated that they would sign guilty
verdicts if the State proved defendant guilty beyond a reasonable doubt.
We are not persuaded that the fact that both Hollins
and Holmes indicated that they could be fair establishes a prima
facie case of discrimination. A venire member who states that he is
incapable of being impartial will be stricken for cause and thus would not be
subject to a peremptory challenge. Accordingly, in every Batson case it
will be true that the challenged witness had indicated that he could be fair and
impartial. Defendant's only evidence, then, that the State's exercise of its
peremptory challenges was racially motivated was that he and the challenged
venire members were African-American. This fact alone is not sufficient to
establish a prima facie case of discrimination. People v.
Andrews, 146 Ill. 2d 413, 430-31 (1992). Defendant, therefore, did not
sustain his burden of establishing a prima facie case of
purposeful discrimination. See Garrett, 139 Ill. 2d 189 (no finding of
discrimination where only evidence offered by defendant was that five out of six
peremptory challenges were against African-Americans). Defendant also claims that the State should not be
insulated from an obligation to explain its peremptory challenges simply because
one African-American juror was accepted on the sworn jury. Defendant notes that
in ruling on his Batson objection, the trial court said, "Even though
we don't need to get to that level, the State has accepted a black juror on this
jury * * *." It is true that a trial court should consider factors other than
the number of African-American persons accepted and excluded by the State in
determining a prima facie case. People v. Holman, 132
Ill. 2d 128, 173 (1989). Because it is not clear from the trial court's ruling
whether the trial court's decision was based upon the fact that the State had
accepted an African-American juror, we will review the relevant circumstances in
this case despite defendant's failure to submit any evidence concerning those
factors, construing any ambiguity in the record against defendant. See
People v. Henderson, 142 Ill. 2d 258, 279-80 (1990). In ruling on defendant's Batson objection,
the trial court did not discuss the relevant factors other than stating that it
did not find a pattern of discrimination. Because the relevant circumstances
appear in the record before us and are not in dispute, we can, without
remanding, determine whether a prima facie case of
discrimination existed. Holman, 132 Ill. 2d at 175. Upon review, we
find several factors refute a finding of purposeful discrimination. According to
the State's brief, which was not disputed by defendant, the State exercised 13
peremptory challenges, 2 of which, or 15%, were against African-Americans. There
were 5 African-Americans in the 70-member venire, or 7.1%. Two of the five
African-American venire members were excused for cause and one woman who had an
African-American father and a white mother was accepted on the sworn panel. We
do not find these figures to create a pattern of discrimination. See
Henderson, 142 Ill. 2d at 288 (State's use of six out of 10 peremptory
challenges, or 60%, against African-Americans where make up of venire was 30%
African-American, was not so disproportionate as to create a pattern of
discrimination). We also do not agree with defendant and the dissent
that, given the low number of African-Americans in the venire, defendant could
never show a pattern of discrimination. We do not believe that the finding of a
pattern is limited to those cases where there was a significant number of
minorities on the jury venire. In fact, in a case where the sole Hispanic member
of a venire was excused by the State pursuant to a peremptory challenge, the
Illinois Supreme Court held that the defendant had alleged "no pattern to the
State's use of peremptory challenges against Hispanic jurors which would show
purposeful discrimination." People v. Pasch, 152 Ill. 2d 133, 164
(1992). "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 is suggests the possibility of racial motivation."
Andrews, 146 Ill. 2d at 429. In this case, for example, we might be
inclined to find a pattern had the State exercised two peremptory challenges
against African-Americans and none or few against whites. On the record before
us, however, the facts simply do not suggest a pattern of discrimination in the
use of the State's peremptory challenges. Nor do we find that there was a disproportionate
number of peremptory challenges against African-Americans. Two of the 13
challenges, or 15%, were against African-Americans, while 10
were against Caucasians and 1 was against a Chinese-American. See People v.
Edwards, 144 Ill. 2d 108, 154 (1991) (no disproportionate use of peremptory
challenges when four challenges were made against African-Americans and 10
against Caucasians, even though no African-Americans were on sworn jury and jury
venire had been 10% African-American). We note that the dissent finds a
disproportionate use of peremptory challenges because two of the five
African-American venire persons, or 40%, were challenged by the state. We
disagree with this method of analysis as it does not compare the number of
challenges to African-Americans with the number of challenges to others. The
Illinois Supreme Court has held that "[t]he number of blacks stricken
compared to the number of nonblacks stricken may reveal whether a
disproportionate number of strikes was used to exclude blacks." (Emphasis
added.) Andrews, 146 Ill. 2d at 430. See also Wiley, 156 Ill.
2d at 478 (Miller, C.J., dissenting) ("The prosecution exercised 45% of its
challenges against black members of the venire (5 of 11)"); Garrett,
139 Ill. 2d at 199 ("[W]e accept the following count as accurate: Of the six
prospective jurors challenged by the State, five were black (83%)). The level of African-American representation in the
venire (7.1%) did not exceed that in the jury, as the jury panel that was sworn
had one African-American juror out of 12, or 8.3% representation. The
heterogeneity of Hollins and Holmes also tends to refute a finding of
discrimination. The answers of Hollins and Holmes during voir
dire raised some question concerning their ability to serve on the jury
and, thus, the men shared a characteristic other than race. See
Henderson, 142 Ill. 2d at 290 (sole concern of reviewing court is
whether stricken venire members shared characteristic other than race; court
need not search for reasons for challenge or for similarities between stricken
African-American and non-challenged white venire members). Two of the relevant factors are neutral. The trial
court conducted the voir dire of the venire, so there were no
statements or questions by the State during voir dire that
implied purposeful racial discrimination. There also was no evidence concerning
whether the race of the witnesses differed from that of defendant, so we also
consider this factor to be neutral. The only relevant factor we find that suggests
purposeful discrimination, in addition to the racial identity between defendant
and Hollins and Holmes, is that defendant is African-American and the victim was
white. See Williams, 173 Ill. 2d at 74-75 (fact that defendant was
African-American and victim was white may suggest an inference of
discrimination). Because the majority of the relevant factors either refute an
inference of purposeful discrimination or are neutral, we cannot say that the
trial court's conclusion that defendant failed to establish a prima
facie case of discrimination was against the manifest weight of the
evidence. See Williams, 173 Ill. 2d at 75 (where interracial nature of
crime and racial identity between defendant and excluded venire members were
only factors suggesting purposeful discrimination, trial court's finding of no
discrimination was not against manifest weight of the evidence). We further note that, even if we agreed with
defendant that he had established a prima facie case of
discrimination, and we emphasize that we do not, we nonetheless would find that
the State had offered race-neutral reasons for excluding Hollins and Holmes. We
are mindful of the fact that a court should not presume or infer an
unarticulated race-neutral explanation from the facts of the case. People v.
Harris, 129 Ill. 2d 123, 184 (1989). We note that the trial court did not
require the State to explain its reasons for challenging Hollins and Holmes
during voir dire. The State, however, did set forth its
reasons when it responded to defendant's posttrial motion. In its response to
defendant's posttrial motion, the State said that it challenged Hollins because
he had been arrested in a case of mistaken identity and because he had a nephew
in jail in Lake County. With regard to Holmes, the State said that its challenge
was based upon the way he spoke, his manner in answering questions, and his
inattention to detail. During voir dire, Hollins
testified that three or four years earlier he had been arrested for home
invasion when the crime victims identified him as the perpetrator. Hollins was
held in the county jail for a few months as he tried to prove his innocence. He
was released when it was determined that the arrest was based on a case of
mistaken identity. Hollins told the trial court, "I have no harsh feelings about
[the incident] because I [would have] probably did the same thing if I was a
police officer." He also said that he did not have any bad feelings toward the
State's Attorney's office "as long as they're doing their job the right way." He
testified that the experience would not affect his performance as a juror.
Hollins also said the fact that a nephew of his had been convicted for burglary
would not affect his judgment. He had not attended any of the hearings related
to the nephew's crime and had no opinion as to whether his nephew was treated
fairly. Venire member Samuel Holmes stated that he had lived
in Lake County for nine years and was employed by the Lake County health
department. He said that he had been robbed by two African-American men in
Waukegan six or seven years previous to the trial. However, Holmes stated that
this experience would not affect his ability to serve as a juror. He indicated
that he understood the presumption of defendant's innocence and the State's
burden of proof and said he could sign a guilty verdict if the State met its
burden. The following exchange then took place between the trial court and
Holmes: Later, at the State's request, the trial court asked
Holmes about his response to a question on his juror questionnaire. The trial
court said, "You say you live in Chicago now?" Holmes said that he did not live
in Chicago. When asked if the answer on his questionnaire was a mistake, Holmes
said, "I think it said which city was I living at before I moved to
Waukegan." With regard to Hollins, we find the State's
explanation that it challenged him because he had been arrested and held for
several months on an erroneous charge to be a race-neutral reason for the
peremptory challenge. A race-neutral reason is based upon something other than
the race of the juror. People v. Munson, 171 Ill. 2d 158, 174-75
(1996). Likewise, with regard to Holmes, we believe the State's explanation that
he indicated he might not be fair and impartial after viewing graphic
photographs; that he appeared somewhat careless in completing his juror
questionnaire also was a race-neutral explanation. The State may properly
exercise a peremptory challenge based upon an individual's courtroom conduct or
demeanor, including hesitation in answering questions. Munson, 171 Ill.
2d at 178. Because the record in this case establishes sufficient race-neutral
reasons for the peremptory challenges to venire members Hollins and Holmes, we
affirm the trial court's denial of defendant's Batson
motion. Defendant's next issue on appeal is that the trial
court committed reversible error when it denied his motion to suppress a
statement that he made concerning the murder of Fred Reckling. Defendant claims
that he was interrogated for 26 hours concerning the Roberts Roost robbery and
other crimes by two teams of police officers, with only short breaks for sleep
and food. Defendant contends that he invoked his right to silence with regard to
the murder of Fred Reckling but the officers repeatedly ignored his right to
silence and engaged in conduct which was oppressive, arbitrary, and unreasonable
in order to obtain his statement. A trial court's ruling on a motion to suppress will
not be disturbed unless the ruling is against the manifest weight of the
evidence. People v. Miller, 173 Ill. 2d 167, 181 (1996). Once an
individual indicates in any manner prior to or during questioning that he wishes
to remain silent, the interrogation of the individual must cease. Miranda v.
Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602,
1627-28 (1966). However, a statement made by a defendant who earlier had invoked
his right to remain silent is admissible if the police scrupulously honored the
defendant's right to cut off questioning. People v. Batac, 259 Ill.
App. 3d 415, 424 (1994). Before addressing defendant's claim that his right
to cut off questioning was not scrupulously honored, we must first determine
whether defendant had invoked his right to remain silent. An individual's demand
to end the interview must be specific. People v. Pierce, 223 Ill. App.
3d 423, 429 (1991). Thus, a reviewing court has held that a defendant did not
invoke his right to silence when he said to questioning officers, "I think you
got enough," "Okay, now have you got enough," "there's nothing I want to add to
it," and "you've got everything you need here now." People v. Aldridge,
68 Ill. App. 3d 181, 186-87 (1979), aff'd, 79 Ill. 2d 87 (1980). In
affirming that case, the Illinois Supreme Court noted that the defendant was not
attempting to terminate questioning but was merely resisting answering questions
concerning particular details of the offense to which he had confessed.
People v. Aldridge, 79 Ill. 2d 87, 95 (1980). Likewise, a defendant did not invoke his right to
remain silent where, when informed of his right to remain silent, he said, "If I
don't want to answer any more questions, then what happens[]," "You got all the
stuff there right now. You don't need no more really," and "I told you, though,
once that ...[.]" People v. Pierce, 223 Ill. App. 3d 423, 430-31
(1992). A defendant also did not invoke his right to silence when, during
questioning concerning the murder of his son, he said, "I'm tired, I can't
answer no more." People v. Milner, 123 Ill. App. 3d 656, 658 (1984).
Further, even where a defendant refused to sign a waiver of his Miranda
rights, asked what benefit he might receive if he made a statement, and then
initially indicated an unwillingness to talk about 10 armed robberies, this
court has held that a defendant did not invoke his right to silence. People
v. Downey, 162 Ill. App. 3d 322, 337 (1987). In this case, defendant was arrested around 7:55
p.m. on January 4, 1996 in connection with an armed robbery at the Roberts Roost
Motel. Around 10:17 that evening, defendant was interviewed by Officers Mark
Tkadletz and Mike Quinn. Quinn read defendant his Miranda rights and
defendant then read and signed a written waiver of rights. The interview of
defendant continued on and off until around midnight the next day, January 5,
1996. During the day of January 5, 1996, defendant was questioned by Officers
Artis Yancey and Luis Marquez and in the evening was questioned by Officers
Tkadletz and Quinn. The interrogation of defendant, however, was not continuous
and included breaks for meals, the bathroom, a nap in the interview room, and
several hours of sleep in a cell. There also were times during the interview
process where defendant was left alone in the interview room while the officers
tried to confirm details of the crimes to which defendant had confessed and
while the officers typed up defendant's statements. During the interrogation,
defendant confessed to numerous felonies, including four murders, five armed
robberies, and a burglary. The officers that questioned defendant testified that
defendant was very friendly and talkative and, after he confessed to the Roberts
Roost armed robbery, began to extensively relate details of his life and his
background, including details concerning the other crimes he had committed.
Officer Tkadletz testified that when he and Quinn
interviewed him, defendant told the officers that there were other incidents out
there that he did not want to bring up because he "didn't want to open up a can
of worms" and asked the officers if they could promise that he would not get the
death penalty. The officers said that they could not make that promise. Quinn
testified that he asked defendant if he had any knowledge about a homicide at
Grand Appliance and defendant said, "No, you're talking about death penalty
stuff." Later, when defendant was interviewed by Officer Marquez about other
crimes he may have committed, Marquez testified that defendant said he did not
want to go in that direction because he would be opening up a can of worms.
Later, defendant said that he would be willing to tell the truth about a
particular incident if his wife told him to tell the truth. Quinn then went to
defendant's home and arranged for defendant's wife to call him. Defendant's wife
spoke with him on the telephone and told him to tell the truth, following which
defendant confessed to the murder of Fred Reckling at Grand Appliance. Prior to
trial, defendant filed a motion to suppress his statement. The trial court
denied defendant's motion, finding that defendant had not invoked his right to
silence. Based upon our review of the record, we agree with
the trial court that defendant did not invoke his right to silence. Defendant's
comments in this case were similar to the comments in the foregoing cases which
were found not to invoke a defendant's right to silence. For example,
defendant's response of "No, you're talking about death penalty stuff," was in
response to a question of whether defendant had any knowledge of the murder at
Grand Appliance. With regard to this comment, we find that defendant was denying
knowledge of the crime and was not invoking his right to remain silent.
Defendant's comments about opening a can of worms also did not amount to a
refusal to talk to the officers about the incident but rather indicated that
defendant did not wish to admit culpability for the murder. While we recognize
that in some cases language less strong than "no" could be construed as invoking
a right to silence, defendant's comments in this case did not rise to that
level. Because defendant had not invoked his right to silence before making his
statement, the trial court properly denied defendant's motion to
suppress. Defendant next contends that he was denied his right
to a fair trial because the State was allowed to introduce evidence of other
crimes at trial, namely, three armed robberies. Prior to trial, defendant had
filed a motion in limine to bar evidence of other crimes. The
trial court held that evidence of other crimes was not admissible as
modus operandi evidence but reserved ruling on whether other
crimes evidence would be admissible to corroborate the reliability of
defendant's statement. Following defendant's cross-examination of Officer
Tkadletz, the trial court held that evidence of other crimes would be admitted
because the cross-examination of Tkadletz had cast grave doubts on the
believability of defendant's statement by suggesting that Tkadletz had either
drafted the statement or had planted the seeds for the statement in defendant's
mind. The trial court held, however, that evidence of other murders committed by
defendant would not be admitted because the prejudicial effect of that evidence
would outweigh its probative value. Defendant now argues that the trial court's
ruling constituted reversible error or, in the alternative, that the admission
of the other crimes evidence was due to the ineffective assistance of counsel
and, therefore, he is entitled to a new trial. In response, the State argues that the evidence of
other crimes was properly allowed, and in support of its argument cites
People v. King, 109 Ill. 2d 514 (1986), and People v. Tellez,
235 Ill. App. 3d 542 (1992). In King, the defendant argued that he was
denied a fair trial due to the admission of evidence concerning an armed robbery
in his trial for murder and armed robbery. King, 109 Ill. 2d at 530.
The Illinois Supreme Court held that because the defendant had asserted that the
police had coerced him into making an untrue confession to the murder and armed
robbery, evidence regarding the other armed robbery was relevant to establish
the accuracy of the confession and, thus, was properly admitted. King,
109 Ill. 2d at 530-31. Likewise in Tellez, the reviewing court
held that evidence of the defendant's involvement in another murder was properly
admitted in the defendant's murder trial because it refuted the defendant's
claim that his confession to the murder for which he was on trial was false.
Tellez, 235 Ill. App. 3d at 555. Citing King, the court noted
that evidence of the commission of other crimes may be relevant to establish the
validity and accuracy of a confession which the defendant claimed was untrue or
coerced. Tellez, 235 Ill. App. 3d at 554. A trial court's decision concerning the
admissibility of other crimes evidence will not be disturbed on review absent a
clear abuse of discretion. Tellez, 235 Ill. App. 3d at 555. Upon
reviewing the record in this case, we cannot say that the trial court abused its
discretion in allowing the State to present evidence of three other robberies
committed by defendant. Defendant's cross-examination of Officer Tkadletz
implied that defendant's confession concerning Fred Reckling's murder contained
only the information that was known to Tkadletz about the murder and that it did
not contain any details of which Tkadletz was unaware. The clear impact of the
cross-examination was to suggest that Tkadletz had fabricated defendant's
confession and coerced him into signing it. Accordingly, the trial court
properly allowed the State to rebut that inference. We note that in allowing the other crimes evidence,
the trial court carefully weighed the prejudice to defendant and excluded any
evidence of other murders committed by defendant as too prejudicial. Any
prejudice to defendant was further diminished because the other crimes evidence
was limited to the armed robberies at Roberts Roost, Best Inn, and Hair
Crafters, even though defendant had confessed to as many as nine other crimes
when making his statements. In addition, before allowing testimony concerning
the other crimes, the trial court told the jury that the testimony was to be
considered only as those statements related to the truthfulness, believability,
or accuracy of defendant's statement in the present case. The State did not call
any victims or witnesses to the other crimes to testify and instead called
Officer Quinn to testify concerning defendant's statements about the three armed
robberies. The State then called other officers to testify concerning the
details of those armed robberies and that the victims of the armed robberies had
identified defendant as the perpetrator of those robberies. Because defendant
chose to attack the veracity of his statement through the cross-examination of
Tkadletz, the trial court did not abuse its discretion in allowing the State to
present evidence of other crimes to refute the claim that defendant's statement
was false. We also do not find that defendant's counsel was
ineffective in opening the door to other crimes evidence. Counsel's
effectiveness is determined by the totality of his conduct, and a reviewing
court will not inquire into areas involving the exercise of judgment,
discretion, trial tactics, or strategy. People v. Gapski, 283 Ill. App.
3d 937, 942 (1996). In denying defendant's posttrial motion, the trial court
noted that defense counsel was in the difficult position of either letting
defendant's confession go to the jury unchallenged, or challenging the
confession and thereby opening the door to evidence of other crimes. The trial
court held that the decision was a matter of tactics. We agree that the decision
of defense counsel was a matter of trial tactics or strategy and, therefore,
will not now second-guess defense counsel's decision. Defendant was not denied
effective assistance of counsel in this case. Defendant next claims that he was unfairly surprised
and prejudiced when Officer Yancey, one of the officers that had interrogated
him, testified to a hypothetical statement allegedly made by defendant
concerning how he would have carried out the murder of Fred Reckling. Defendant
argues that this statement was never revealed until Yancey testified to it on
direct examination at trial. On direct examination, Yancey testified that the
subject of Fred Reckling's murder came up three times during his interrogation
of defendant. When asked what defendant said when the subject came up for a
third time, Yancey responded: In response to defendant's objection that he had
never heard of this statement before, the trial court barred the State from
going into the statement further and instructed the jurors to strike the
statement but denied defendant's motion for a mistrial. Defendant now claims
that the State violated Illinois Supreme Court Rule 412(a)(ii) (134 Ill. 2d R.
412(a)(ii)) by not disclosing the statement. Defendant further argues that the
trial court committed reversible error in denying defendant's motion for a
mistrial because Yancey's testimony had irreparably prejudiced him by suggesting
that defendant had made a third confession to the murder. Supreme Court Rule 412(a)(ii) requires the State to
disclose any written or recorded statements or the substance of any oral
statements to the defendant upon written motion and also to disclose a list of
witnesses to the making and acknowledgment of such statements. 134 Ill. 2d R.
412(a)(ii). It is no excuse that the police did not advise the State of the
statement. People v. Young, 59 Ill. App. 3d 254, 257 (1978). A trial
court's judgment concerning a violation of Supreme Court Rule 412(a)(ii) is
entitled to great weight, although a reviewing court will find an abuse of
discretion when a defendant is prejudiced by a discovery violation and the trial
court fails to eliminate that prejudice. People v. Weaver, 92 Ill. 2d
545, 559 (1982). It is true that in some cases, the possible impact
on the jury of a previously undisclosed confession is incalculable and even an
admonition to the jury to disregard the testimony may not overcome the potential
prejudice to a defendant. People v. Valdez, 230 Ill. App. 3d 975,
984-85 (1992). In general, however, an admonition to the jury to disregard
testimony will relieve prejudice to a defendant and will cure any error.
People v. Romero, 189 Ill. App. 3d 749, 758 (1989). We find that in
this case, the trial court's actions in barring the State from inquiring further
into the statement and its admonition to the jury to disregard Yancey's
statement were sufficient to overcome any potential prejudice to defendant. Any
testimony that defendant may have confessed to the murder of Fred Reckling to
Yancey was cumulative of other testimony in the case concerning defendant's
confession of the crime, including defendant's written and videotaped
confession. Consequently, the trial court properly denied defendant's motion for
a mistrial. Defendant next contends that the trial court abused
its discretion when it denied his request to reopen his case following the
State's closing rebuttal argument to the jury. In rebuttal, Jeffery Pavletic,
the chief deputy State's Attorney, reviewed the defenses not used in the case,
including temporary insanity, self-defense, accident, alibi, and noted that the
only defense left was that the police were lying. With regard to the last
defense, Mr. Pavletic argued: "You know, if these cops were liars, why didn't they
solve this crime 13 months ago? If they are liars, they have made I am sure
hundreds and hundreds of arrests during that 13-month period of time. Why didn't
they pick on one of those other people who just committed a crime? Why didn't
they pick one of those people 13 months before the Defendant walks through the
door? Why didn't they pick on one of them, force them into confession, if they
are out to railroad an innocent man?" Defendant objected to this argument and, after the
State concluded its argument, asked the trial court to instruct the jury to
disregard the argument or to allow him to reopen his case to present evidence
that the police had interrogated a former employee of Grand Appliance, Ian
Duffy, in connection with the murder of Fred Reckling. The trial court denied
defendant's request. On appeal, defendant claims that the State's argument
raised a new issue and that he should have been allowed to rebut that issue
through the presentation of evidence. In response, the State contends that the proper
issue on appeal is whether its comment was an improper comment, not whether
defendant should have been allowed to reopen his case. The State then argues
that the comments in its rebuttal argument were invited by defendant's closing
argument. Specifically, the State points to the following arguments of defense
counsel: We agree with the State that the threshold issue
here is whether the prosecutor made improper comments in his closing argument. A
prosecutor is given a great deal of latitude in closing argument. People v.
Hudson, 157 Ill. 2d 401, 441 (1993). In reviewing allegations of error in
closing argument, this court must examine in their entirety the arguments of the
prosecution and defense to place the comments at issue in the proper context.
People v. Jordan, 205 Ill. App. 3d 116, 122 (1990). Comments made by
prosecutors on rebuttal will not be considered improper if they appear to have
been provoked or invited by defense counsel's argument. People v.
Johnson, 254 Ill. App. 3d 74, 83 (1993). Further, this court will not
reverse a trial court's determination concerning the propriety of a prosecutor's
closing remarks absent an abuse of discretion. Hudson, 157 Ill. 2d at
441. Examining the closing arguments of the State and the
defendant in this case, we agree with the State that its comments in rebuttal
were invited by defendant. Defendant argued in closing that the police officers
had decided to make him confess to the only unsolved murder in Waukegan.
Consequently, it was reasonable for the State to argue on rebuttal that if the
police officers simply wanted to pin the murder on someone, they could have
picked anyone that they had arrested in the past 13 months. This argument
clearly was in response to defendant's closing argument and was not error.
Because the statement was invited by defendant's argument in closing, we do not
find that the statement raised a new issue or opened the door to testimony
concerning Ian Duffy. The trial court, therefore, properly denied defendant's
motion to reopen the case. Defendant's final argument on appeal is that he was
not proven guilty beyond a reasonable doubt. Defendant claims that there are
significant conflicts between his confession and the facts surrounding the
murder of Fred Reckling. Defendant argues that because the only evidence against
him was his confession, which deviated in significant respects from the
evidence, no rational jury could have found him guilty beyond a reasonable
doubt. Defendant is correct in asserting that an
uncorroborated confession generally is insufficient to support a conviction.
People v. Mendoza, 208 Ill. App. 3d 183, 203 (1991). The corroboration
necessary to support a conviction based upon a defendant's confession is
provided by proof of the corpus delicti of the offense, which
in a murder case consists of the fact of death and that the death was caused by
the criminal agency of another. Mendoza, 208 Ill. App. 3d at 203. The
corroborating evidence, however, need not rise to the level of proof beyond a
reasonable doubt, but instead need only tend to confirm a defendant's
confession. People v. Cloutier, 156 Ill. 2d 483, 503 (1993). Every
detail of the confession need not correspond to the independent evidence in
every particular. Mendoza, 208 Ill. App. 3d at 204. Here, there was sufficient independent evidence
tending to confirm defendant's confession. The death of Fred Reckling was caused
by the criminal agency of another. The pathologist that conducted the autopsy of
Reckling testified that the cause of death was multiple blunt-force injuries,
most likely from a long and heavy but irregularly surfaced object. Defendant's
confession was consistent with the pathologist's testimony concerning the manner
and cause of Reckling's death. In his confession, defendant said that he hit
Reckling a number of times with a 3½-foot-long grooved mahogany or oak stick.
The corpus delicti thus provides the corroboration necessary
to sustain defendant's conviction. Nonetheless, defendant cites numerous alleged
inconsistencies between his confession and the evidence presented at trial that
he asserts raise a reasonable doubt concerning his guilt. As noted, however,
defendant's confession and the evidence presented need not correspond in every
detail. Mendoza, 208 Ill. App. 3d at 204. Further, where the evidence
is conflicting, this court will not substitute its judgment for that of the
trier of fact. Mendoza, 208 Ill. App. 3d at 204. A conviction should be
reversed only where the record leaves the reviewing court with a grave and
substantial doubt concerning a defendant's guilt. Mendoza, 208 Ill.
App. 3d at 204. Upon reviewing the substantial record in this case,
which included the testimony of 42 witnesses, we find that the circumstances
related in defendant's confession were confirmed by corroborating evidence. Any
conflicts between defendant's confession and the evidence could be explained by
defendant's admission in his statement concerning the Roberts Roost robbery that
sometimes he was so high he had trouble remembering details. In any event, it
was the responsibility of the trier of fact to resolve any conflicts in the
evidence, and we will not substitute our judgment for that of the fact finder on
those issues. We cannot say that the evidence was so unreasonable, improbable,
or unsatisfactory as to raise a reasonable doubt concerning defendant's
guilt. For all of the foregoing reasons, the judgment of
the circuit court of Lake County is affirmed. Affirmed. INGLIS, J., concurs. JUSTICE RATHJE, specially concurring in part and
dissenting in part: I respectfully dissent. This case should be remanded
for a Batson hearing regarding venire members Hollins and Holmes. I
concur with the rest of the majority's opinion. In Williams, our supreme court discussed
the relevant standard of review: However, when it appears that the trial court has
not properly applied the Batson test, a case shall be remanded for
further Batson proceedings. See, e.g., People v.
Wiley, 156 Ill. 2d 464, 474-75 (1993) (where trial court had apparently
applied the outdated Swain test, cause was remanded for further
proceedings pursuant to Batson). Two African-American venire members, Robert L.
Hollins, Jr., and Samuel Holmes, were excused due to peremptory challenges posed
by the State. The following is a brief review of the questioning of these two
prospective jurors and subsequent discussions regarding same. Robert L. Hollins, Jr., testified that he had lived
in Lake County for 11 years. He was married with five children. He was disabled
due to a leg injury from a work accident, but he did not take any medication
that would affect his ability to concentrate. A brother of Hollins was a police
officer in Mississippi. He stated that he was a "very active" member of a
neighborhood watch group. In that capacity, he regularly talked with local
police officers and had even played football with them in prior years. Hollins
said that he found most of the officers with whom he had contact "to be pretty
honest." Three or four years prior to the subject trial, Hollins had been
arrested for home invasion and detained in the county jail for a couple of
months. He was released when it was determined that the arrest was based on a
case of mistaken identity. Hollins told the trial court, "I have no harsh
feelings about [the incident] because I [would have] probably did the same thing
if I was a police officer." He testified that the experience would not affect
his performance as a juror. Similarly, Hollins said the fact that a nephew of
his had been convicted for burglary would not affect his judgment. He had not
attended any of the hearings related to the nephew's crime and had no opinion as
to how he was treated. Further, Hollins recalled hearing only one news
report about this case but could not remember its content. He said he would base
his decision "on the evidence and the evidence only." Hollins stated that he had
not formed an opinion about whether the defendant was guilty or innocent. He
understood that a defendant was presumed innocent until proved guilty. He knew
the State's burden of proof and said that he would be willing to return a guilty
verdict if the State met that burden. Hollins believed in the death penalty
"when it's necessary." His decision as to whether to impose the death sentence
would depend on the evidence. When the questioning of Hollins ended, the State
exercised a peremptory challenge against him. Defense counsel, David Brodsky,
objected to the State's use of a peremptory challenge, noting that Hollins, an
African-American, had answered the questions appropriately. The trial court told
defense counsel that he "[had] to get a prima facie showing to get past
the issue. You have to start with a prima facie showing of the
discriminatory issue by the State." Defense counsel responded by noting that
with "so few blacks" in the jury pool "that would be an impossible burden for us
to meet." A discussion ensued about the State's acceptance of one mixed-race
juror, and the trial court expressed the view that the State could have been
concerned about Hollins' erroneous arrest and jail experience. Then the
following colloquy took place. Later in the voir dire, venire member
Samuel Holmes was questioned by the trial court. He stated that he had lived in
Lake County for nine years and was employed by the Lake County health
department. Holmes stated that he did not know the defendant or any of the
lawyers or witnesses and that he had never heard of the case before being called
for jury service. He said that he had been robbed by two African-American men in
Waukegan six or seven years previous to the trial. However, Holmes stated that
this experience would not affect his ability to serve as a juror. He indicated
that he understood the presumption of defendant's innocence and the State's
burden of proof and said he could sign a guilty verdict if the State met its
burden. According to Holmes, neither the race of the defendant nor the race of
the victim would affect his judgment. He was not opposed to the death penalty
and said he could vote to impose it, depending on the evidence. The State exercised a peremptory challenge against
Holmes. Once again, defense counsel objected, noting that Holmes was an
African-American and arguing that "[t]here is absolutely no reason for excusing
this man whatsoever." The following colloquy then ensued. In response, defense counsel responded by noting
that Holmes unhesitatingly answered all questions indicating that he would be
fair and impartial and that he could impose the death penalty. Whereupon, the
following discussion took place: Defense counsel then noted that Holmes was the last
African-American person remaining in the venire and urged the court to ask the
prosecutors to offer a race-neutral reason for their exercise of a peremptory to
exclude him from service. The judge denied the defense objection,
ruling: The record reveals the following pertinent evidence.
The victim was a Caucasian male, and the defendant is an African-American male.
In its brief, the State represents, and defendant does not dispute, that there
were 5 African-Americans in the 70-member venire. A woman who had an
African-American parent and a Caucasian parent was accepted by the State to
serve on the subject jury. Two other African-Americans were subject to joint
motions to excuse them for cause. The record further shows that 64 venirepersons
were questioned during voir dire. Twenty-two venirepersons were excused
for cause, including the two aforementioned African-Americans. Defendant
exercised 15 peremptory challenges, 13 of which were used to excuse Caucasian
males and 2 used to excuse Caucasian females. The State exercised 13 peremptory
challenges, excusing 6 Caucasian females, 4 Caucasian males, and 2
African-American males. The jury that was finally selected contained an
African-American female and a Chinese-American male. Initially, defendant argues that the trial court
applied an improper test to deny defendant's Batson objections
regarding venire members Hollins and Holmes. The trial court's remarks regarding
said objections create a similar type of concern to that which was discussed in
People v. Wiley, 156 Ill. 2d 464 (1993). In Wiley, six
African-American venirepersons were excused pursuant to the State's peremptory
challenges. At the close of voir dire defendant filed a motion for a
mistrial, challenging the State's use of its peremptories to excuse five
African-American venirepersons. The trial court denied the motion, stating,
inter alia, that it perceived no "systematic exclusion" of
African-Americans from the jury. Wiley, 156 Ill. 2d at 470. The
Wiley court noted that the trial court's finding of no systematic
exclusion of African-American veniremen was reminiscent of Swain v.
Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), which had
acknowledged that there were possible constitutional violations where the
prosecution excluded African-Americans " 'in case after case, whatever the
circumstances, whatever the crime and whoever the defendant or the victim may
be.' " Wiley, 156 Ill. 2d at 464, quoting Swain, 380 U.S. at
223, 13 L. Ed. 774, 85 S. Ct. at 837. The Wiley court further noted
that Batson had " 'changed the burden of proving the State's racial
discrimination by allowing a defendant to rely solely on the facts of his case.'
" Wiley, 156 Ill. 2d 474, quoting People v. Pecor, 153 Ill. 2d
109, 123 (1992). The Wiley court concluded: Like the Wiley court, I am not certain that
the trial court was strictly and literally applying an improper test in the
instant appeal. Nevertheless, its remarks in the discussion of the Holmes
peremptory challenge, regarding the necessity of defendant's proving a pattern
of discrimination before going to the second step of the Batson test,
raise significant concerns. Also like the Wiley court, I find the trial
court's remarks as to the defendant's burden to be improper and misguided. I do
not believe that either Batson or its progeny require a
defendant, where there are only a few African-American venirepersons and there
are only one or two disputed peremptory challenges, to put forward, as part of
his prima facie case, evidence of a pattern of discrimination. Such a
pattern of discrimination would be impossible to prove if, for example, there
was only one African-American in a venire and that venireperson had been
peremptorily challenged by the State. Further, in cases such as this, where the
number of African-Americans in the venire is small and the number of disputed
peremptory challenges is small, proof of a pattern would be virtually impossible
to put forward. Yet it is clear that the exclusion of even one
venireperson on account of race is a constitutional violation and would be
a sufficient basis to accord a defendant a new trial. Wiley, 156 Ill.
2d at 476. A pattern of discrimination in the State's
peremptory challenges may indeed be a relevant factor to consider in determining
whether a prima facie case of discrimination has been established.
However, it cannot be applied by the trial court as a prerequisite, in a case
such as this, to proving a prima facie case. That would put the type of
burden on defendant that Batson was designed to eradicate. Indeed, the
Batson court recognized that it would be unwise to set down a hard and
fast list of factors to be applied to determine whether a prima facie
case of discrimination had been established. It specifically stated, "We have
confidence that trial judges, experienced in supervising voir dire,
will be able to decide if the circumstances concerning the prosecutor's use of
peremptory challenges creates a prima facie case of discrimination
against black jurors." Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106
S. Ct. at 1723. A further impropriety in the trial court's denial of the objection to the
Hollins peremptory challenge was the apparently inordinate emphasis it placed on
the State's acceptance of an African-American venireperson. To reiterate, in
denying the subject objection, the trial court stated: In the context of the Hollins voir dire,
the trial court's substantial reliance on the fact that an African-American
juror had already been impaneled was erroneous in determining whether the
Hollins peremptory challenge was purposeful discrimination by the
State. As the Batson court wrote, " 'A single
invidiously discriminatory governmental act' is not 'immunized by the absence of
such discrimination in the making of other comparable decisions.' "
Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722, quoting
Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 266 n.14, 50 L. Ed. 2d 450, 465 n.14, 97 S. Ct. 555, 564 n.14
(1977). In other words, the fact that the State agreed to the impaneling of one
African-American juror does not demonstrate, by itself, that the State did not
discriminate in using peremptory challenges against Hollins and
Holmes. The occurrence of the trial court's erroneous
requirement of a "pattern" of discrimination in the State's exercise of
peremptory challenges and its improper emphasis upon the impaneling of an
African-American juror are integral elements of my view that this case should be
remanded for a Batson hearing. See Wiley, 156 Ill. 2d at
474-75. With this determination in mind, I now address the
factors listed in People v. Williams, 173 Ill. 2d 48 (1996), for
determining whether a defendant has made a prima facie showing of
purposeful discrimination in the State's use of peremptory challenges. The first
relevant circumstance is whether defendant and the excluded venirepersons are of
the same race. In the instant appeal, defendant, Hollins, and Holmes are
African-Americans. The next factor deals with whether the evidence in
the case establishes a pattern of strikes against African-American venirepersons
by the State. As noted above, in the context of this venire, in which there were
so few African-American venirepersons, a "pattern of strikes" was not
relevant. However, assuming arguendo that the instant
defendant had to prove a pattern of discrimination, the evidence demonstrates
that the State peremptorily challenged an inordinate percentage of
African-American venirepersons. As noted above, there were 5 African-American
venirepersons in the entire venire of 70 people. Two of the five were excused on
joint motions for cause, leaving three venirepersons that were not challenged
for cause. Two of the three, or 66%, of the remaining African-American
venirepersons were peremptorily challenged by the State. Thus, in the context of
this venire, by the time that venireman Holmes was the subject of a peremptory
challenge by the State, a "pattern of strikes" had become or was becoming
evident. The next factor is whether there was a
disproportionate use of peremptory challenges by the prosecution against
African-American venirepersons. Peremptory challenges were used by the State
against 2 of the 5, or 40%, of the African-American venirepersons. While the
record is not clear exactly how many Caucasians underwent voir dire, I
estimate that approximately 55 prospective Caucasian jurors were questioned by
the court. Of that total, the State used 10 peremptory challenges against
Caucasian venirepersons. In other words, the State employed peremptory
challenges against less than 20% of the Caucasian venirepersons, a far lower
percentage than the percentage of African-American venirepersons excluded by the
State's peremptory challenges. The next factor to be considered is the level of
African-American representation in the venire as compared to the jury. As noted
above, one African-American served on the jury. Thus, the level of
African-American representation on the jury was 8.3%. Further, the 70-person
venire contained 5 African-Americans, or 7.1% of the venirepersons. As
these numbers are comparable, this factor favors the State's side of this
issue. The next factor, the prosecutor's questions and
statements during voir dire, is of little relevance here. The trial
court essentially conducted the voir dire. Further, the State was
required to say little during voir dire, even in those situations where
defendant objected to the peremptory challenges exercised against Hollins and
Holmes. Another relevant factor is whether the excluded
African-American venirepersons were a heterogenous group sharing race as their
only common characteristic. The statements of Hollins and Holmes indicated,
inter alia, that they had different vocations and had pursued generally
different lifestyles. Thus, I find that they were essentially heterogenous
individuals whose race was their only common characteristic. A further factor in establishing a prima
facie case is the race of the defendant, the victim, and the witnesses. As
noted in Williams, 173 Ill. 2d at 74, the racial characteristics of a
crime are important factors. The instant record does not disclose the race of
the witnesses. However, it does reveal that defendant is an African-American and
the victim was a Caucasian. Accordingly, this factor may indicate an inference
of purposeful discrimination in the exercising of peremptory
challenges. Another factor set out in People v. Wiley,
156 Ill. 2d at 464, 476 (1993), is whether the excluded African-American venire
members shared nonracial characteristics with other venire members who were
accepted by the prosecution. A review of the record indicates that Hollins and
Holmes did share nonracial characteristics with venirepersons accepted by the
State. Reviewing all the pertinent factors in the instant
appeal, in light of our above-cited concerns regarding the trial court's
erroneous requirement of a pattern of strikes and misplaced emphasis on the
impaneling of an African-American juror, I conclude that a prima facie
case was established by defendant. The factors suggesting purposeful
discrimination are: (1) the racial identity between the defendant and
the excluded venirepersons; (2) the interracial nature of the crime; (3) the
heterogeneous characteristic of the excluded venirepersons, whose primary common
characteristic is their race; (4) the disproportionate use of peremptory
challenges by the State against African-American venirepersons; (5) an apparent
pattern of strikes against African-American venirepersons by the State; and (6)
the shared characteristics of the excluded African-American venirepersons with
venire members who were accepted by the prosecution. The only factor supporting
the State is the level of African-American representation in the venire as
compared to the jury. The other factor, the State's questions and statements
during voir dire examination and while exercising peremptory
challenges, does not favor either side because of the paucity of any such
statements or questions. Accordingly, I conclude that the trial court erred in
determining that a prima facie case of discrimination had not been
established. The State's contention that this case is controlled
by People v. Williams, 173 Ill. 2d 48 (1996) is unpersuasive.
Williams is factually distinguishable from the instant appeal. There,
the State used only 2 of its 20 peremptory challenges, excusing 1
African-American venire member and 1 Caucasian venire member. The overall
paucity of the State's peremptory challenges and the lack of two or more
peremptory challenges against African-American venirepersons clearly worked
against Williams's claim of purposeful discrimination. Here, as shown above, the
peremptory challenges exercised against venire members Holmes and Hollins
provide a broader context in which to determine whether a prima facie
case of purposeful discrimination had been made. People v. Wiley, 156 Ill. 2d 464 (1993),
more closely resembles the appeal at bar. As noted above, the Wiley
court was concerned, as is this court, with the trial court's understanding of
the burden of proof and relevant factors to be considered in situations where
violations of Batson have been alleged. The Wiley court also
emphasized some factors that are present here. For example, Wiley found
it highly significant that the excluded prospective jurors were a heterogeneous
group with only their race as the common characteristic. Wiley further
stressed that the excluded African-American venirepersons shared nonracial
characteristics with other venire members who were impaneled on the jury. These
are factors which, in the instant appeal, also weighed in defendant's
favor. I would find that the trial court's disposition of
defendant's Batson motions were erroneous. The record demonstrates that
a prima facie case had been established under Batson in regard
to the peremptory challenges exercised against Hollins and Holmes. The State
should have been required to provide reasons for its peremptory challenges
exercised against both venire members.
THE PEOPLE OF THE STATE
Appeal from the Circuit
Court
"THE COURT: Well, don't you have to show a pattern
first before we get to -- it is a two-step process, isn't it? First you have
to show a pattern of discrimination by the State, or they [sic] by you before
we need show any reasons.
MR. BRODSKY: I am not required to
show any kind of pattern of discrimination.
THE COURT: Since when?
MR. BRODSKY: I don't believe I am
required to show any pattern.
THE COURT: First you have to
show a prima facie showing. Has to be some kind of
prima facie showing before we require them [sic] to
state a reason."
"I don't find a pattern. I don't find a prima
facie showing to lead me to make an inquiry as to race neutral
reason. Therefore, I am not going to force them to make any kind of discussion
at this time."
"THE COURT: You may be required as a juror to look at some rather
graphic photographs about injuries and the scene of the occurrence and hear
testimony about that. Can you be fair and impartial in spite of those graphic
photographs?
HOLMES: I don't think so.
THE COURT: You think that if you see
photographs that show some serious injuries and a bloody scene that you would
find the Defendant guilty of this just because of the photographs?
HOLMES: Well, it is kind of on the
evidence and then and the photos. It would be hard to say.
THE COURT: Just showing photographs of
severe injuries, does that cause you concern about being fair to the State and
fair to the Defendant?
HOLMES: I don't think so."
"His answer to that question at that time was he -- I guess the
way he said it was he kind of theorized, you know, in a hypothetical situation
how he would have -- if he had been involved in that, how he would have
carried out the incident."
"But consider this. Detective Tkadletz and Detective Quinn already
had a certain impression of [defendant] when they talked to him. They had an
impression of him that he was a bad actor, that he did some bad things, so why
not, why not make this bad person confess to the only unsolved murder case in
Waukegan?
* * *
They [the detectives] want you to believe
that what happened in that interrogation room is all pleasantness, there was
no coercion, nothing done to force a statement.
* * *
[W]hen you look at this entire statement,
it is not true. None of it is. * * *
When you take this statement, Ladies and
Gentlemen, from behind the closed doors of the police office, from that
interrogation room, you try to match it to reality, you try to match it to the
careful work that the other police officers did, it doesn't match."
"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 a purposeful discrimination. [Citation.]
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.
[Citations.] 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. [Citations.] 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." Williams,
173 Ill. 2d at 70-71.
"MR. BRODSKY: I mean his answers, your Honor, were
without hesitation.
THE COURT: No question. No
question. That certainly isn't a reason for cause, but I can see why it would
give them some concern. Even though we don't need to get to that level, the
State has accepted a black juror on this jury and the Court thinks that there
could be some explanation. So there's no prima facie showing, so I'm
not going to go any further than that other than to note he is a black
gentleman of 33 years of age. Other than that the record should speak for
itself of his questions and answers. So over the objection of the defense, he
is excused by the State on their [sic] motion and their
challenge."
"THE COURT: Well, don't you have to show a pattern
first before we get to--it is a two step process, isn't it? First you have to
show a pattern of discrimination by the State, or they [sic] by you before we
need show any reasons.
MR. BRODSKY: I am not required to
show any kind of pattern of discrimination.
THE COURT: Since when?
MR. BRODSKY: I don't believe I am
required to show any pattern.
THE COURT: First you have to
show a prima facie showing. Has to be some kind of prima
facie showing before we require them [sic] to state a reason."
(Emphasis added.)
"MR. BRODSKY: That is a prima facie showing. They
[sic] have had jurors, every juror that was white that answered
questions exactly the same way this person did was allowed on the jury.
MR. PAVLETIC [Prosecutor]: That is
ridiculous. The record will stand on whether there is any basis in fact for
what he just said on that last statement. There is no basis of fact in that.
MR. BRODSKY: It is absolutely
true, Judge; and this man has a right, my client has a right to be able to
have minority representation on this jury and to not have him excluded for
that singular reason. There is no other reason. Where he lives, we have jurors
accepted from where he lives. You know, I mean there is no, absolutely no
reason to have him excused in this particular case.
THE COURT: What do you say
about all this?
MR. PAVLETIC: Judge, it has to be established number
one. I would just indicate for the record that we have accepted an
African-American on this jury, that two were excused by the Court for cause,
and one had been rejected as the Court allowed the record to reflect because
he had been locked up in Lake County Jail on a crime that he felt he was
unjustly charged on, on a crime that he said he then had to prove his
innocence in order to be removed.
That is the history of the
African-Americans who have been on this venire. There is no basis for their
Batson challenge. There is no pattern of discrimination in this case,
and the State concurs with what the Court has already indicated regarding what
has to be shown on a prima facie level for Batson
challenge."
"THE COURT: I don't find a pattern. I don't
find a prima facie showing to lead me to make an inquiry as to race
neutral reason. Therefore, I am not going to force them to make any kind of
discussion at this time." (Emphasis added.)
"Although we cannot conclude on the present record that the trial
court undertook a strict and literal application of the outdated
Swain test in the instant cause, we nevertheless find the remarks
made by the trial court were improper and misguided. Their occurrence is
an integral part of our decision to remand the matter for further
Batson proceedings." (Emphasis added.) Wiley, 156 Ill. 2d at
474-75.
"THE COURT: No question. No question. That certainly
isn't a reason for cause, but I can see why it would give them some concern.
Even though we don't need to get to that level, the State has accepted a
black juror on this jury and the Court thinks that there could be some
explanation. So there's no prima facie showing, so I'm not going to
go any further than that other than to note he is a black gentleman of 33
years of age. Other than that the record should speak for itself of his
questions and answers. So over the objection of the defense, he is excused by
the State on their motion and their challenge." (Emphasis added.)