Opinion
Rita Fry, First Asst. Public Defender, Chicago (Cary M. Berman and Karen E. Tietz, of counsel), for defendant-appellant.
Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb and Sara Dillery Hynes, of counsel), for plaintiff-appellee.
BATSON REVIEW AFTER REMAND IN No. 1-88-0510
Presiding Justice HARTMAN delivered the addendum to the opinion of the court:
This court retained jurisdiction to review the Batson proceedings, if necessary. On remand, the circuit court ruled that Creasy failed to establish a prima facie case of discrimination, from which ruling Creasy seeks further review.
A Batson hearing was held on November 1, 1991, before a judge different than the one who conducted the prospective juror voir dire, since the original judge no longer held office. None of the trial counsel who participated in the voir dire was of record or participated in the Batson hearing. The parties through counsel stipulated that the racial makeup of the venire was as follows: forty-eight persons composed the venire; eleven were black, four were Hispanic, thirty were caucasian and three were of an unrecorded race. It was further stipulated that the murder victim and attempted murder victim were white and that Creasy is a "white Hispanic." The forty-eight juror cards were received into evidence. The record on remand reveals that some of the "evidence" relating to a venire member's race or ethnic origin was the result of counsel's telephone conversation with that member. No witnesses were called by either side. During the Batson hearing it was noted that prospective juror questioning on voir dire was conducted principally by the court. Counsel for each party generally accepted the juror or simply excused each one with their thanks.
During the Batson proceedings, the circuit court (Batson court) summarized the evidence contained in the transcript of the original voir dire proceedings. The first person excused was by the defense, a white male, on a peremptory challenge. The second person was excused for cause by the court, a white female. Next, the court excused a black female for cause due to a nervous condition. The State then exercised its first peremptory challenge, excusing a white female. The court then excused a black minister for cause, because the minister was not sure that he could be a proper juror. A white female was peremptorily excused next by the defense. The court then excused a white male for cause, who stated that he would be biased if defendant failed to testify. The court next excused an Hispanic female for cause, who was unsure of her own ability to be fair. At this point, the Batson court observed that all those accepted by the parties as jurors, eight in number, were white and that the State had not excused any black or Hispanic venirepersons.
The Batson court continued her summary of the voir dire; omitted from her summary at this point, however, was that a person of unrecorded race was excused next for cause by the court. The next person excused, the Batson court noted, was a black female, the first black venireperson peremptorily excused by the State. A black male next was excused by the court for cause, because he did not think that he could be fair in a murder case. The court thereafter excused for cause a female of unrecorded race and a white male. The State followed with the next peremptory challenge and excused a black female. The defense followed and exercised its third peremptory challenge, excusing a white male. The State next peremptorily excused a white female. The Batson court noted at this point that it saw little difference between any of the two white and two black venire members excused by the State. Next, the defense peremptorily excused a white male. The court then excused a white male for cause. The State exercised its next challenge against a black male. The next two jurors accepted were either both black, of which one was also Hispanic, or were one black and one Hispanic, respectively. The jury was complete. In picking the two alternates, the court excused a Hispanic and a white venireperson, and the State and the defense each excused a white person.
Whether the eleventh juror accepted was a black Hispanic male or white Hispanic male is unclear, as seen from the following colloquy:
The Batson court stated that in asking "general questions, both the defense and the State have pretty much excused people that answer the questions, general questions the same way." Based upon everything she read, the attorneys' statements, the questions and answers to the court, and the juror information cards, the court was unable to find a prima facie case in which the purposeful exclusion of black venirepersons was undertaken by the State in this case. The exclusion of Hispanic people was not an issue.
Creasy contends the court's finding that he failed to establish a prima facie case of purposeful discrimination was against the manifest weight of the evidence.
To establish a prima facie case of racial discrimination in the State's use of peremptory challenges, defendant must prove relevant facts and circumstances which raise an inference that the State deliberately used its peremptory challenges to exclude members of the venire for race-based reasons. (People v. Kindelan (1991),People v. Evans (1988), 213 Ill.App.3d 548, 157 Ill.Dec. 674, 572 N.E.2d 1138.) The court's determination that no prima facie case existed will not be disturbed unless contrary to the manifest weight of the evidence. ( 125 Ill.2d 50, 125 Ill.Dec. 790, 530 N.E.2d 1360.) Nevertheless, Creasy urges that because the judge who decided the case on remand was not the same judge who conducted the voir dire, this court is in no different position to assess the evidence or credibility of the prosecutor than the circuit court. The circuit court's determination of whether a defendant has established a prima facie case does not turn upon an evaluation of credibility, but depends on weighing the facts and relevant circumstances. (People v. Baisten (1990), 203 Ill.App.3d 64, 148 Ill.Dec. 463, 560 N.E.2d 1060.) Among those facts and relevant circumstances a circuit court can consider, in determining whether a prima facie case of intentional discrimination exists, are: (1) a disproportionate number of strikes against blacks, so as to present a pattern of peremptory challenges by the State against black venire members; (2) peremptory challenges used against venirepersons as heterogeneous as the entire community, sharing race as their only common characteristic; (3) the racial identities of defendant, the victims, and the witnesses; and (4) the level of black representation in the venire as compared to that in the jury. People v. Harris (1989), 129 Ill.2d 123, 135 Ill.Dec. 861, 544 N.E.2d 357; People v. McDonald (1988), 125 Ill.2d 182, 125 Ill.Dec. 781, 530 N.E.2d 1351; Evans, 125 Ill.2d 50, 125 Ill.Dec. 790, 530 N.E.2d 1360.
Relying upon the above factors, Creasy asserts that he established a prima facie case of discrimination. First, the State is alleged to have disproportionately exercised its challenges against black venirepersons by using three of five challenges for such exclusion. Second, the three State-excused black venirepersons had in common only the facts that they were married and had no prior jury experience. Creasy urges that these common characteristics help establish the prima facie case because the same characteristics were shared by several of the selected jurors. Third, the level of black representation in the venire was triple that accepted to serve on the jury, allegedly further establishing Creasy's prima facie case. Fourth, the only black juror was chosen subsequent to Creasy's Batson objection.
A sixth State peremptory challenge was made to an alternate white prospective juror.
See footnote 1.
The Batson court here reviewed the entire jury selection process, juror by juror. The court observed that both the defense and the State generally excused people who answered questions in the same way. The court found little difference between any of the excluded venirepersons, black or white, who were excused by the defense or the State, thereby neutralizing the heterogeneity factor. Lastly, the court did not believe it significant that a Hispanic person was put on the jury after Creasy made the Batson objection.
The instant record does not demonstrate a pattern of strikes against black venire members; an equal number of challenges were used by the State to exclude white venirepersons as black. At least one black person served on the jury, perhaps two. Three black venirepersons were excused by the court for cause. The victims and witnesses were caucasian, and defendant was a caucasian Hispanic; therefore, no discrimination can be inferred from Creasy's or the victim's race. People v. Henderson (1990), 142 Ill.2d 258, 154 Ill.Dec. 785, 568 N.E.2d 1234.
See footnote 1.
The heterogeneity factor in this case was neutral. Of those venirepersons peremptorily excused by the State, white and black, they generally possessed other characteristics in common. Although it may be true that the prosecution accepted white venire members with similar characteristics, at this prima facie stage of the Batson challenge, the court was required to be concerned only with any characteristics other than race, rather than possible reasons for the strikes or similarities between stricken black and accepted white venire members. (People v. Henderson, 142 Ill.2d at 289-90, 154 Ill.Dec. 785, 568 N.E.2d 1234.) A prima facie case cannot be established solely on the number of black venirepersons challenged People v. Mahaffey (1989), 128 Ill.2d 388, 132 Ill.Dec. 366, 539 N.E.2d 1172.
From the foregoing, the circuit court's finding that no prima facie case existed was not against the manifest weight of the evidence.
Affirmed.
SCARIANO and DiVITO, JJ., concur.
"[DEFENSE COUNSEL]: Theodore Gutierrez, Hispanic, he served. Black Hispanic male.
THE COURT: You're calling him a black Hispanic male?
[DEFENSE COUNSEL]: No. We don't know. He is Hispanic male.
THE COURT: So on him you don't know if he is white or black Hispanic?
[DEFENSE COUNSEL]: No.
THE COURT: You're just calling him Hispanic?
[DEFENSE COUNSEL]: Right.
THE COURT: He served. He is number eleven."