People v. Edwards

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:

“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 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.

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.

“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 [sic] challenge.”

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.

“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 [szc] to state a reason.” (Emphasis added.)

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:

“MR. BRODSKY: That is a prima facie showing. They [szc] 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.”

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 COURT: 1 don’t find a pattern. I don’t find aprima 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.)

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 12 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 474 , quoting Swain, 380 U.S. at 223 , 13 L. Ed. 2d at 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 at 474 , quoting People v. Pecor, 153 Ill. 2d 109, 123 (1992). The Wiley court concluded:

“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 .

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 Bat-son 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:

“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 júror 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 [sic] challenge.” (Emphasis added.)

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 662/3%, 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 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 Bat-son 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.