People v. Harris

JUSTICE RYAN, concurring in part and dissenting in part:

Generally, with the exceptions noted herein, the majority opinion does a commendable job of analyzing and resolving the issues raised by the defendant on this appeal. I concur in those parts of the opinion, and dissent only from the finding that it was error to have permitted the introduction of evidence concerning the shooting of Gary Green at the aggravation and mitigation phase of the sentencing hearing, and from that part of the opinion which remands the Batson issue for further hearing as to three jurors excused by the State by the use of peremptory challenges.

As to the introduction of evidence concerning the killing of Gary Green in 1969, it is important to remember that this evidence was introduced at the second phase of the sentencing hearing. That hearing was held before the court without a jury. At the first phase of that hearing, the court found the defendant eligible for the death penalty, based on the presence of the statutory aggravating factor that the murder had been committed in the course of an armed robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6).) At the second phase of the sentencing hearing, evidence in aggravation and mitigation was introduced. One of the matters in aggravation which the State introduced at the second phase of the hearing was the 1969 killing of Gary Green. The majority opinion holds that the evidence of this killing should have been excluded because of the State’s decision to nol-pros that charge, and because the trial court’s reliance upon the 1969 killing as an aggravating factor was misplaced. I do not agree. The killing of Gary Green was not presented to establish a second murder to qualify the defendant for the death penalty. (See Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(3).) It was presented to prove a matter in aggravation. It was, therefore, not necessary to establish that the defendant had “murdered” Gary Green. The fact that the court, in considering factors in aggravation and mitigation, referred to the “murder” of Gary Green is not significant. The court there used the word “murder” as synonymous with “kill.” As the general context of the judge’s statement indicates, he simply found that the defendant killed Gary Green in 1969, which along with other evidence of defendant’s participation in the fray, such as firing a gun twice, were proper bits of relevant evidence bearing on defendant’s violent nature.

McDonald was the only witness who testified at the-sentencing hearing as to actually seeing the defendant fire a gun. He stated that the defendant had a rifle, but ballistics evidence indicated that the bullet was not fired by a rifle. This contradiction is not destructive of McDonald’s testimony and was a matter to be resolved by the trial judge. McDonald could have been mistaken or - the ballistics evidence could have been in error. It appears that only one other person was with the defendant on the other side of the wall from the victim, his brother, and McDonald. The evidence indicates that only the defendant fired a gun. The trial judge acknowledged the problems surrounding this type of a case, but concluded that “the evidence is positive and credible that the defendant did kill Mr. Green.” It was the trial court’s function to resolve conflicts in the evidence and to draw inferences therefrom. (See People v. Stewart (1984), 105 Ill. 2d 22, 66 .) There is ample evidence in the record to support the trial court’s determination. It should not, therefore, be lightly overturned. (People v. Brownell (1980), 79 Ill. 2d 508, 539-40 .) Also, I do not think that the fact that the State nol-prossed the charge against the defendant for the murder of Gary Green supports the holding of the majority opinion. It appears that McDonald, the only person who saw the defendant with a gun, did not testify at the nolle prosequi hearing. Gary Green’s brother, Rochester, testified at that hearing that someone by the name of “Rat” killed his brother. At the sentencing hearing in this case, Rochester explained his testimony at the nolle prosequi hearing. He stated he did not actually see the person who shot his brother. He did not know the identity of the person by the name of “Rat” and stated that he had simply presented to the trial judge, at the nolle prosequi hearing, information he had picked up on the street. This testimony, as well as that detailed above, was all before the sentencing judge when he concluded that defendant had killed Gary Green. The evidence surrounding that killing was not unreliable, as the majority opinion concludes. It is no more unreliable than is any other evidence that is in conflict or may have been contradicted. We do not remove from the fact finder’s consideration evidence simply because it may be in conflict with other evidence, or may have been contradicted by previous evidence.

I likewise do not think that the trial court erred in excluding statements made by the prosecutor as his reasons for nol-prossing the 1969 murder charge. In refusing to-consider the prosecutor’s reasons, the court properly stated that “[tjhere’s no importance to what the attorneys felt,” and also noted in its findings that “[i]t seems that the State did not have Mr. McDonald at that time.” Thus, the court acknowledged that it had before it more evidence than was available to the prosecutor at the time the previous charge was nol-prossed, and that the reason why the previous charge was dismissed was not relevant to or probative of the issues before the court at the sentencing hearing. I do not think the defendant was prejudiced by the exclusion of this evidence.

For these reasons, I dissent from the majority opinion’s holdings on the various issues arising from the consideration by the court at the second phase of the sentencing hearing of matters pertaining to the killing of Gary Green in 1969.

As to the Batson issues, I dissent only from the majority opinion’s holding which remands the matter to the trial court for a further Batson hearing as to jurors referred to in the majority opinion as the 13th, 14th and 15th persons excused by the State. I find that the opinion’s analysis of the Batson issues relating to the other jurors who had been peremptorily excused was thorough, and legally and logically sound.

I believe that the record reflects facts articulated by the State which support a neutral explanation for the exercise of peremptory challenges to excuse jurors referred to in the opinion as the 13th, 14th and 15th persons excused peremptorily by the State. I feel that the majority misread Uviedo v. Steves Sash & Door Co. (5th Cir. 1984), 738 F.2d 1425 . The majority opinion quotes page 1430 of that case as follows:

“ ‘[i]t is beyond the province of a trial or reviewing court to determine — after the fact — that certain facts in the record might have served as the basis for an employer’s [discriminatory act].’ ” (129 Ill. 2d at 185.)

This statement does not mean that this court, or any reviewing court, is precluded from considering clearly articulated reasons for the use of a challenge which appeared in the record just because the trial court made a finding as to the legitimate exercise of a challenge which is not supported by the record, or made no specific finding as to an articulated reason. In Uviedo, the Federal magistrate had found that the plaintiff had established a prima facie case of discrimination, that the defendant had rebutted the prima facie case, and that the plaintiff had failed to show that the reasons articulated by the defendant were merely a pretext. The Court of Appeals held that although there may be facts in the record which support the finding of the magistrate, “[t]he difficulty here, however, is that defendant never articulated to the magistrate that these were in fact the reasons for the particular challenged action.” (Emphasis in original.) (738 E2d at 1429.) The language quoted in the majority opinion in the context of the Uviedo case does not preclude a reviewing court from considering reasons that are in the record which the prosecutor articulated for the exercise of peremptory challenge, whether or not they are the reasons given by the trial court for finding that the State had given a neutral explanation for the exercise of the challenge. Uviedo only requires us to hold that although the record may disclose an explanation for the exercise of a challenge, that explanation cannot be found to be adequate by either the trial court or a court on review, unless the prosecutor articulated that as a reason for exercising a peremptory challenge. This court can, and for the sake of judicial economy should, evaluate the reasons articulated by the prosecutor for the exercise of peremptory challenges and should determine whether the reasons given constitute a neutral explanation for the exercise of the challenges. We need not be limited to considering only the findings and facts in support thereof given by the trial court.

As to the 13th juror excused by the State, the majority opinion holds that the trial court’s reliance upon the fact that the venireperson’s friend was a criminal defense lawyer was improper because the State had never clearly articulated that this fact was a reason that it exercised a peremptory challenge to excuse that juror. It may be that the State did not articulate as a reason for excusing this juror the fact that he had a friend who was a criminal defense lawyer, but the prosecutor did clearly state, as a reason for excusing that juror, that the juror had a friend who was a lawyer and a city councilman, as noted in the explanation by the prosecutor quoted by the majority opinion. This relationship, coupled with the fact that the prosecutor did not have further information concerning how that relationship might influence the juror, caused him to use a peremptory challenge to exclude the juror. I think this is a perfectly valid neutral explanation for the use of a peremptory challenge, which this court is capable of evaluating without sending the case back for another hearing.

Apparently, the defendant was not concerned about the finding by the trial court that the juror’s friend was a criminal defense lawyer, because this erroneous finding is not mentioned in the defendant’s brief. The defendant, in the statement-of-facts section of his brief, sets forth the reason stated by the prosecutor for exercising peremptory challenges and the findings of the court as to each of the 17 jurors whose challenges were questioned. As to the challenge to the juror we are now considering, the defendant states, in his brief, that the prosecutor said he excused that juror “primarily because he had a friend *** who was a lawyer and a city councilman.” The defendant’s brief states that the court found that the prosecutor excused this juror “because he knew an Evanston city councilman who was also a lawyer.” In the argument section of the defendant’s brief, the reasons for excusing jurors and the findings of the court are specifically argued as to six of the jurors that were excused by the State. Also, two others are generally referred to without detailed discussion. However, nowhere in the defendant’s brief was any argument made concerning the adequacy of the articulated reasons for the challenge of this 13th juror, or the finding of the court in relation thereto which the majority opinion now finds to have been erroneous.

As to the juror referred to in the opinion as the 14th venireperson excused by the State, the opinion states that the finding of the court that the juror lived within a mile of the defendant’s residence was erroneous. It is interesting to note that the defendant’s brief argues that the State’s explanation for why it excused this juror “was nearly identical to its explanation for why it excused [the 12th venireperson excluded by the State].” The majority opinion holds that the explanation for the exclusion of the 12th venireperson was adequate, that is, that “the prosecutor did not have enough information about the venireperson to feel comfortable with having her on the jury.” 129 Ill. 2d at 181-82.

Since the defendant argues that the explanation for the 14th venireperson excused was nearly identical with that given for excusing the 12th venireperson, it would appear that the reason for approving the challenge to that juror would compel the approval of the challenge of the venireperson now under consideration. The majority opinion quotes the statement of the prosecutor as to his concern about his lack of knowledge as to this juror. (129 Ill. 2d at 186.) This lack of knowledge is what the defendant refers to in his brief as the reason that was nearly identical with that given for excusing the 12th venireperson.

The mere fact that the trial judge found that this juror lived within a mile of the defendant’s residence instead of within 3V2 miles of the scene of the crime, as the defendant asserts was the case, does not detract from the valid explanation of lack of adequate information articulated in the record by the prosecutor.

As to the final venireperson excluded by the State discussed in the majority opinion, my colleagues note that the trial court failed to make a specific finding regarding the State’s exclusion of this juror and held that in view of this, there are no sufficient findings in the record to provide a basis for appellate review. (129 Ill. 2d at 187-88.) As noted in the majority opinion, this juror was a woman whose husband was unemployed and whose son had been a victim of an armed robbery and had testified at the trial of his assailant. The prosecutor, at the Batson hearing, stated that he did not know the outcome of that case or whether this juror was satisfied with the treatment her son had received. The prosecutor stated that the voir dire of this juror was sketchy and that he did not have a lot of information about her, compared to the information he had as to other prospective jurors that he was considering at that time. It must be remembered that in this case the court conducted the voir dire. It is understandable that the prosecutor did not want to jeopardize his case by accepting this unknown quantity as a juror. Just as the lack of adequate information on which to base an informed judgment was considered in the majority opinion to be an adequate explanation for the exclusion of the 12th venireperson challenge by the State, it is likewise an adequate reason when articulated by the prosecution for the challenge of other jurors about whom the voir dire and the juror cards do not give sufficient information to permit the prosecutor to make an informed determination.

Although the court did not make any specific findings as to the validity of the prosecutor’s explanation for excusing this juror peremptorily, it did make a general finding that the State had come forth with neutral explanations for its use of peremptory challenges.

In People v. Mack, the trial court, at the conclusion of a Batson hearing, failed to make specific findings as to the adequacy of the reasons stated by the prosecutor for the use of peremptory challenges. This court stated:

“The judge’s oral ruling and written order are sufficiently specific for our purposes here. The record contains the transcript of the explanations offered by the prosecutor. The judge found those explanations to be adequate and race neutral, and sufficient to rebut the defendant’s prima facie case under Batson. There was no further need for the trial judge to enter findings with respect to each black member of the venire excluded by the prosecution.” (People v. Mack (1989), 128 Ill. 2d 231, 245-46 .)

The majority opinion attempts to distinguish Mack by saying that the trial court, in Mack, found that the facts were not in dispute, whereas, in our case the trial court made no specific findings that the facts were not in dispute. (129 Ill. 2d at 187-88.) This is a distinction without a difference. The record discloses whether or not the facts are in dispute, and this court can make that determination just as well as can a trial court. The holding in Mack is clearly controlling in this case. In Mack, we stated:

“Although the credibility of the prosecutor’s explanations for his conduct at the voir dire was in dispute, the underlying facts were not.” (Mack, 128 Ill. 2d at 246-47 .)

The same reasoning applies in our case, which contains no factual dispute as to the articulated reasons for the use of the peremptory challenges. It is only the sufficiency of these explanations that is in dispute, and this court is perfectly capable of deciding that question from the record.

For the reasons given, I find it unnecessary to remand this case to the trial court for a further Batson hearing as to these three venirepersons. The trial court found that the reasons articulated by the prosecutor for excluding these jurors were racially neutral. That finding is supported by the record and is not manifestly erroneous.

In closing, I wish to point out the needless additional delay and waste of judicial resources that will be occasioned by the majority opinion. The crimes in this case were committed February 10, 1983. The defendant’s first brief was filed in this court August 10, 1985. As noted in the majority opinion, because of the holdings by the Supreme Court, it was necessary for us to remand this case for a Batson hearing, which we did in May 1987. The case is now before us for the second time, and we still have not disposed of the appeal. The majority opinion again remands the case for a further Batson hearing, following which it will again be appealed to this court for the third time. If we find that the peremptory challenges were properly used, under the holding of the majority opinion, the case will again be remanded to the trial court for a new sentencing hearing, which could be held seven years or more after the original trial. Whatever penalty is imposed at the new sentencing hearing, another appeal will follow. If the penalty is death, the appeal will be directly to this court. If it is other than death, the appeal will be to the appellate court, with a petition for leave to appeal to this court. In any event, before the defendant’s first appeal of his murder conviction is disposed of, this court and the trial court will each have considered this case four times. Of course, this will conclude only the first round. The defendant will then proceed again in the trial court under the provisions of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.). It is interesting to note that nowhere in the defendant’s briefs does he profess his innocence or say that he did not commit these crimes. Also, he does not contend that the evidence was not sufficient to prove him guilty beyond a reasonable doubt.

I dissent from those portions of the majority opinion discussed above. I would affirm the defendant’s convictions and sentences.

JUSTICE MILLER joins in this partial concurrence and partial dissent.