Defendant directs our attention to People v. Andrews, 132 Ill.2d 451, 466, 548 N.E.2d 1025, 1032 (1989). The State directs our attention to People v. Champs, 273 Ill. App.3d 502, 510, 652 N.E.2d 1184, 1191 (1995). In Andrews, defendant entered a car, which was stopped for a traffic signal, and pointed a gun at the passenger and driver.
For reasons set forth later in this opinion, we remand the case for a new trial. We first address defendant's proof-beyond-a-reasonable-doubt contention to protect his constitutional right against double jeopardy ( People v. Champs, 273 Ill. App.3d 502, 511, 652 N.E.2d 1184 (1995)). He argues the State failed to disprove his alibi beyond a reasonable doubt and that,even assuming he was at the scene of the accident, it was not proven he was under the influence of alcohol.
We first address defendant's proof beyond a reasonable doubt contention to protect his constitutional right against double jeopardy. ( People v. Champs (1995), 273 Ill. App.3d 502, 511, 652 N.E.2d 1184.) Although defendant sets forth two separate arguments on this issue, we find them related and treat them together.
These are precisely the types of facts Illinois courts have found to constitute exceptionally brutal and heinous behavior. See People v. Champs, 273 Ill. App. 3d 502, 510, 652 N.E.2d 1184, 1191 (1995) (behavior is exceptionally brutal and heinous where a shooting is systematic, unprovoked, continues after the victim has been struck, and lacks any logical reason). Had Gray's attorney raised an Apprendi issue on appeal, it is extremely unlikely that the appellate court would have reversed Gray's extended-term sentence. For these reasons, Gray's attorney's failure to raise an Apprendi issue on appeal did not cause him prejudice.
The large disparity in the prosecutor's strikes constitutes prima facie evidence of a pattern of strikes against Blacks and suggests racial motivation for the strikes. See People v. Harris, 129 Ill. 2d 123, 172-73 (1989) (State's use of 15 out of 20 peremptory challenges to exclude Blacks constituted a pattern of strikes against blacks); People v. Champs, 273 Ill. App. 3d 502, 507 (1995) (finding a pattern of strikes where the State used three of its five peremptory challenges against Black veniremembers); United States v. Alvarado, 923 F.2d 253,255 (2d Cir. 1991) (finding a prima facie case when the prosecution struck four out of seven minority jurors).
People v. Davis, 231 Ill. 2d 349, 360 (2008)(citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008) [citations.]). Defendant argues that the racial breakdown of excluded venirepersons—66% African-American and 34% Caucasian—is so disproportionate that it indicates purposeful discrimination. ¶ 33 In support, defendant cites to People v. Champs, 273 Ill App. 3d 502 (1995), in which the court found an inference of purposeful racial discrimination where 60 percent of the excluded jurors where African-American. In Champs, the court reasoned that 60 percent of the excluded jurors being African-American suggested an inference of racial discrimination when the State used peremptory challenges to exclude three out of only four potential African-American jurors.
A reviewing court should not overturn a trial court's finding on the issue of discriminatory intent in the prosecution's use of peremptory challenges unless it is convinced that the trial court's determination was clearly erroneous. People v. Champs, 273 Ill.App.3d 502, 506, 210 Ill.Dec. 208, 652 N.E.2d 1184 (1995). Because discriminatory intent is a matter of fact and a question of credibility, the trial court's findings are afforded great deference on review.
People v. Hartzol, 222 Ill. App.3d 631, 651, 584 N.E.2d 291, 306 (1991). In evaluating the brutality or heinousness of the defendant's conduct, the trial court must evaluate all the circumstances surrounding the incident ( People v. Champs, 273 Ill. App.3d 502, 510, 652 N.E.2d 1184, 1191 (1995), and each case will rest upon its own facts. People v. Keller, 267 Ill. App.3d 602, 611, 641 N.E.2d 891, 897 (1994).
The State also argues that the trial court did take into account the mitigating factors in sentencing defendant. The State further argues that the record shows that the trial court's description of defendant's shooting of McTizic was correct. As this court stated in People v. Champs, 273 Ill. Ap. 3d 502, 652 N.E.2d 1184 (1995): "An extended term sentence may be imposed if the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
In evaluating the brutality or heinousness of the conduct, the trial court must evaluate the entire nature and all the facts surrounding the incident. People v. Champs, 273 Ill. App.3d 502, 510, 652 N.E.2d 1184 (1995); People v. Hartzol, 222 Ill. App.3d 631, 651, 584 N.E.2d 291 (1991). Behavior is heinous if it is hatefully or shockingly evil, grossly bad, or enormously and flagrantly criminal.