Petition — Joseph Miller v. State of Illinois 120 Ill.App.3d 495 (1983) (No. 82-5840)

82-5840

No.

In The

SUPREME COURT OF THE UNITED STATES :

October Term, 1982 -

JOSEPH MILLER, )

Petitioner, )

-V¥o~ i

STATE OF ILLINOIS, ‘

Respondent. ‘

Joseph Miller, pro ge

Stateville Corr. Ctr.

P.O. Box 112, N-01655

Joliet, IL. 60434

>

‘

TABLE OF CONTENTS

PYAYOFecccccccccccrecceceeeesessssecseeesesesesereereers i

Opinion Below....sccccceccecececcerecescesccecesoccesces I

Jurisdictions. ccccccccccccccccccccccccccecccccccccccoses Led

Question Presented. ..cccccccceccceccececcusececceseseees 2

2

Constitutional Provisions Involved.cscrceseesseeeesesers

Statement of the Cac@.ccerccceceeeeeseseseesseesseereres 2.3

Reasons for granting this writeccccccecsseeseceeecresess

Conclusion. cceccccccccccccccccereesevecssesesesseceesers

Certificate of Service.cscsccceeeeceerereceseeesseeeenes

Motion to Proceed in Forma Pauperis...ssseeseeeeeeeveees

ALTE awl Sec cccccceccccccccsceceesecceeeceeseeseeeeseneee

TABLE OF AUTHORITIES

Black v. Curb, 422 F.2d 656 (7th Cir. 1970) ccceceeeeeees 6

Com v. Henderson, 436 A.2d 951 (1981) ecccaceceecececeees

Commonwealth v. Soares, 377 Mass. 461, 387 N.E. 2d 499;

cert. denied, Sete e U.S. 881 (1979) cccccccescccccsccccsess 10,11

Drew v. State, 588 S.W. 562 (Term. 1979) «ceeseecccvceees

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968). 6,13

Duren v. Missiour, 439 U.S. 357, 99 S.Ct. 664 (1979) «eee 6,7

Peters v. Kiff, 407 U.S. 493, 92 SeCt. 2163 (1972) «eee.

People v. Jackson, 69 Ill. 2d 252, 371 N.E. 2d 602 (1977) 9

People v. Lavinder, 102 Ill. App. 3d 622, 430 N.E. 2d

243 (ist Dist. ee 4,5

People v. Miller, (80-1241) (ist Dist. 1982)...ssssecrss 4

People v. Payne, 106 Ill. App. 3d 1034, 436 N.E. 2d 1046

(ist Dist. a 8,9,13

People v. Teague, 108 Ill. App. 3d 891, 439 N.E. 2d 1066

(ist Dist. 19 2) 000600000006 00 000800060088 65600080050088 )

People v. Thompson, 79 A.D. 2a 87, 435 N.Y¥.S. 2a 739 (19-

Bi) cccccee eres er eee eee reese eee esses eeseseeHeeeeeeeeeesse

People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978).. 10,1:

Pippin v. State, 151 Ga. App. 225, 259 S.Z. 2d 488 (1979) 14

Radford v. State, 348 So. 2d 880 (Ala. App. 1977)+sese+- 14

Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164 (1940)....... 6

11

State Ve Brown, 371 So. 2a 751 (La. 1979) cocccovcsececess 14

State Ve Washington, 385 So. 2d 1162 (La. 1979) ecccccvecs 14

ain

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824% (1965)..+e+e++ 812,13

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692 (1975S) ecece 657213

STATUTES. RULES, AND OTHERS

28 U.8.Ce, section L257 (DB) cccvccecererececerreseseesesseres zZ

U.S.Const. Amendment Gtr cocecececeseeeeeeneeeneeseosesoncs Ze de%e

U.S. Const. 14th Amerndment...-ccccerererevccccsereseseseses 2.7+it2

Ill. Rev. Stat. (1981). che 110A, SOC. Z2oeececceccecesseres 4

California Constitution, Art. I, SOC. 16. ceceeseeeeceeeeces 10

Massachusetts Const. Art. L2scscccceereaesesssereceseeserses

U.S. Supreme Court Rule J3.cceccccccccsesverecsesesesececes

an

U.S8- supreme Court Rule SJ eee ee ee ee eeeeseseseereseeesesess me

-ii-

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOSEPH MILLER,

Petitioner,

cae eel itl Mie ct Marea Mngt Mossel! Merc! inant Manat agua!

STATE OF ILLINOIS,

Respondent.

To: The Honorable, The Chief Justice and Associate Justices of

the United States Supreme Court:

I.

PRAYER

Joseph Miller, (hereinafter petitioner), acting in propria

persona, respectfully prays that a writ of certiorari be issued

to review the judgment of the Illinois Appellate Court entered

in this proceeding.

Il.

The opinion of the Illinois Appellate Court appears in

appendix (a), attached herewith. The order of the Illinois Sup-

reme Court denying petitioner's leave to appeal to the Illinois

Supreme Court is attached herewith as appendix (b).

Iil.

The opinion and judgment of the Illinois Appellate Court

was entered on March 1, 1982, affirming the Circuit Court of

Cook County judgment. In this regard, petitioner petitioned for

leave to appeal to the Illinois Supreme Court which was denied

on October 5, 1982. The jurisdiction of this Court is properly

invoked under 28 U.S.C., section 1257(3), conferring on this

Court the authority to review final judgments rendered by the

highest court of the State, in this instant, the State of Ill-

inois. Petitioner further submits that this review is taken as

a matter of right.

IV.

QUESTION PRESENTED

i.

CERTIORIARI SHOULD BE GRANTED TO RESOLVED

THE CONFLICT BETWEEN VARIOUS STATE COURTS

AND THE PROSECUTOR'S USE OF THE PEREMPTORY

CHALLENGES TO EXCLUDE BLACKS FROM JURY SER-

VICE VIOLATES PETITIONER'S SIXTH AMENDMENT

RIGHT TO A JURY DRAWN FROM A CROSS-SECTION

OF THE COMMUNITY.

Ve

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the Uni ted

States privides in pertient part: “In all criminal prosecution,

the accused shall enjoy the right to @ «++ s trial by an in-

partial jury of the State and district wherein the crime shail

have been committed. .. +”

The Fourteenth Amendment to the United States Cons ti tut-

ion provides, in parts ". . . + Nor shall any State deprive any

person of life liberty, or property without due process of law. . .

VI.

STATEMENT OF THE CASE

Petitioner was convicted of murder, attempt armed robbery

and armed violence predicated on the robbery. During jury select-

ion, defense counsel's objection to the State's repeated use of

peremptory challenges to exclude black people were overruled. Ail

of the Blacks were excused and the petitioner proceeded to trial

before an all white jury. (Tr. 50,51,137)

On May 29, 1978, the deceased, William Starcy was found

shot to death in his car. The State presented two witnesses who

testified that on that date they spoke to petitioner, he all-

-2-

egedly told them that he had shot a man in a car. (Tr. 528,561,

591,621) The petitioner was arrested on June 13, 1978 and after

a lengthy interrogation, gave an incuipatory statement to the

police and to an Assistant State's Attorney which was introduced

at trial as People Exhibit No. 11. (Tr. 407,08) At pre-trial hear-

ing, the State was allowed to use the statement itself as proof

of the voluntary nature of the statement.

At the close of the evidence, the jury was instructed and

retired for deliberations. (Tr. 996,1021,1023) During this deliber-

ation, they sent a note to the judge asking if the petitioner

could be found guilty on less than all three charges. (Tr. 1024,

25) The trial judge referred them to original instructions. (Tr.

1024,1026, C. 1231) After further deliberation, verdicts of guilty

were returned and a judgment was entered on the charges. (Tr. 1029,

1032,1033)

A hearing was held on petitioner's post-trial motions,

followed by sentencing hearing. (Tr. 1043,45) The court sentenced

petitioner to concurrent terms of thirty-five years for murder,

thirty years for armed violence, and fifteen years for attempt

armed robbery. (Tr. 1048,1054) On appeal, the Appellate Court

in an unpublished opinion vacated petitioner's attemp: armed

robbery conviction. However, the court felt that petitioner was

not denied a fair and impartial jury by the prosecutor deliber-

ately excluding Blacks from the jury.

vil.

REASONS FOR GRANTING THiS WRIT

The primary issue on this appeal is whether petitioner's

right to a trial by an impartial jury, as defined by our State

and Federal Constitution, was violated by virtue of the prose~

cutor’s unquestioned use of all of the substantial number of pere-

mptory challenges exercised by him to exclude black prospective

jurors from the jury service. Additionally, this Court must also

resolve, whether the petitioner has 4 Sixth Amendment entitle-

ment to a fair and impartial jury, especially in this event,

where no less then fourteen black persons were deliberately ex-

cluded from this jury trial, which was contingent upon the rac~-

jal motivation by the prosecutor.

In this sense, the Appellate Court upon review disposed

of this case under local rule 23in holding that the petition-

er had not set forth a prima facie case of systematic exclusion.

The Opinion not only conflicts with two recent decisions render-

ed by the same First District Appellate Court, but what's equally

important is that the conflict exists between various state court

decisions.

In People vy. Miller, (80-1241) (ist Dist. 1962) (opinion

unpublished), the court gave no logical rationale whatsoever as

to why petitioner had not presented a prima facie case. The court

in affirming petitioner's conviction merely stated, /t_/he trial

court did not find the state was exercising its peremptory chall-

enges improperly and, on this record, we cannot say that the

trial court abused its discretion." (Slip Opin., at p- 9)- Age-

ord, to People vy. Layinder, 102 Ill. App. 34 622, 430 N.E. 2d

243 (ist Dist. 19781) (Johnson J. dissenting).

The Lavinder Court was the same division that affirmed

petitioner's conviction, but even there, Lavinder, can be look-

ed upon in several different aspects: 1) there were only six

Blacks on the panel that were peremptorily excluded by the pro-

Sint aan

1/ See, Ill. Rev. Stat., (1981), ch. 410A, section 23.

mee

secutor; 2) the prosecutor only used six peremptory challenges

to exclude Blacks; and 3) the prosecutor did not admit unlike

in the instant case that he had deliberately used his perempt-

ory challenges to exclude Blacks. Dissimilar to the instant case

is the comparative stage to the lavinder Court, where the pros-~-

ecutor here, did not deny that racial motivation were behind his

excluding all potential Blacks jurors. In particular, when con-

fronted with the ideal that he was excluding Blacks from the jury,

the prosecutor merely stated, « /defense counse]7 is excluding

all whites from the jury.” (Tr. 136).

Inconsistent was another determining factor here, especi-

ally in light of the fact that Mr. Justice Johnson who set on

the court in reaching an affirmative in the instant case, but

nonetheless Mr. Justice Johnson dissented in layinder,. supra,

holding inter alia, that the defendant had presented a prima

facie case. This Court, thus must be also mindful that the court

in Leyvinder,. was faced primarily with a lesser degree of exclus-

fon then what actually occurred in the instant case.

It is clear from the yoir dire that Blacks were excluded

solely on the basis of race. Individually they represented a

broad cross-section of the community in which they varies in

ages and backgrounds. However, a clear prima facie slowing that

racial motivation was behind the prosecutor excluding various

jurors was evident comparatively speaking because the individ-

ual Black prospective jurors that were excused, in comparison

with the whites that were excepted by the prosecutor as trier

of fact showed no more qualifying factor then those Blacks ex-

cluded.

In fact, in the case of some potential jurors, the dis-

tinction between those excused by the prosecutor, and those who

utlimately served as juros are mystifying. The following ex-

-5-

ample is illustrated.

William Nicholsen sat as a juror in this case. His voir

dire revealed that he lived with his mother near Clark and Add-

ison. He worked as an order filler for a printing company. Ten

years earlier he had been robbed in the Loop although no one was

arrested. He never sat on a jury before and was never in the mil-

tary. (Tr. 295,97.301,03)

His responses were quite similar to those of Mr. Thomas

Wellesby (whom was Black) who also lived with his mother. He was

a truck driver like Mr. Nicholsen he had never sat on a jury nor

served in the military. (Tr. 162,63) Other than race, it is diff-

{eult to discern what motivated the State to exclude Mr. Wellesby

yet accept Mr. Nicholsen.

It is undisputed that a criminal defendant is guaranteed

an impartial jury by the Sixth Amendment and by principles of

due process. Duncan vy. leuisiana, 391 U.S..145, 88 S.Ct. 1444

(1968). Since the Sixth Amendment has been interpreted to guar~

antee a defendant to an impartial jury, it is required that the

jury be drawn from a fair cross-section of the community. Smith

¥. Texas, 311 U-S. 128.130. 61 S.Ct. 164.65 (1940). A jury from

which certain group of people have been excluded does not repre-

sent a fair cross-section of the community, and any defendant

appearing before such & jury has been denied a fundamental right

secured by the Constitution. Taylor vy. Louisiana, 419 U.S. 522,

26,28, 95 S.Ct. 692,95.97 (1975). Thus, when the State systemat-

ically exclude Blacks, whom essentially constitute a sizeable

part of the population is violative of the equal protection

clause. See, Bhack vy. Curb, 42° F.2d 656 (5th Cir. 1970). The

standard by which jury selection procedure are to be judged

what depending on whether the procedure ‘s challenged

vary some

under the Sixth Amendment or equal protection. As stated by this

Court in Duren vy. Missiour, 439 U.S. 357, 99 S.Ct. 664 (1979),

the elements of prima facie violation of the Sixth Amencment

are:

i.

1) that the group alleged to be

excluded is a “distinctive” group

in the community; 2) that the re-

resentation of this group in ven-

res from which juries are select-

ed is not fair and reasonable in

relation to the number of such per-

sons in the community; and 3) that

this underrepresentation is due to

systematic exclusion of the group

in the jury-selection process. Id.,

at 364.

The law is clear that a showing of substantial underrep-~

resentation of a cognizable class can establish a prima facie

case of discriminatory selection of jurors.

Thus, in Taylor, supra, this Court had before it a Louis-

jana jury-selection system which did not disqualify woman from

jury service but permitted them to decline. As a result, only

a few females, a number grossly dispruportionate to the nun-

ber of eligible women in the community, were called for jury

service. This Court held that the petitioner (a male) was de-

prived of his Sixth and Fourteenth Amendment rights to an in-

partial jury trial by the exclusion of woman jurors. The essent~

fal purpose of the fair cross-section requirement is to assure

both the “diffused impartiality” of a jury drawn from a broad

representative poll and “communi ty participation in the admin-

istration of the criminal law.” Taylor, supra. 419 U.S., at

530,31.

The fair cross-section right extends to defendant's the

opportunity to have a jury whose members reflect the “qualit-

4es of human nature und varites for human experience, the range

of which is unknown and perhaps unknowable.” Peters vy, Kitt,

407 U.S. 493,503,004, 92 S.Ct. 2163,69 (1972).

Finally, petitioner submits that the purpose of a fair

cross-section protection is to provide a criminal defendant

with a jury which are microcosms of the community. In this

event, the Sixth Amendment right to an impartial jury is given

-?-

full effect by insuring that distinct groups of the community

are represented, but equally important, are not given the opp-

ortunity to dominate, or, in the alternative, deny the opport-

unity to participate in a democratic system of justice.

Additionally, petitioner submits that the inherent proced-

ure enunciated in Swain y. Alabama, 3680 U.S. 202, 85 S.Ct. 824

(1965), that is being utilized in Illinois is not an accurate

guide in which to determine whether the state prosecutor is

using his peremptory challenges to exclude individual from per-

forming jury service. See, e.g,, People vy. Payne, 106 Ill. App.

3d 1034, 436 N.E. 2d 1046,1051 (ist Dist. 1982). There, the

Appellate Court First District held that the State's systemat-

ic exclusion of prospective jurors solely because of their race

is invidious and unconstitutional at any stage of the jury select-

ion, i,e., from the time the general jury list is prepared by

the jury commissioner until the jury is actually selected and

sworn. Id., 106 Ill. App. 3d at 1036.37, 436 N.E. 2d at 1046.

The court based it’s decision in Payne, on a defendant's right

to an impartial jury under the Sixth Amendment and upon the

roles of the State, the prosecutor and the Court itself in a

criminal trial. The court in concluding held that even though

the prosecutor had deliberately left remaining one black juror

on the venire, it was still visibly evident that the jury was

so deleted of a fair cross-section of the community that the

Sixth Amendment was in facto being violate:i at this point. The

court rejected the State’s argument that the jury was fairly

represented:

"The State also argues that be-

cause one 3lack was seated on the

jury the State did not affirmat-

> ively deny defendar:t a fair cross-

section of the community on the

jury. This argument is unavailing

because this case involves the ex-

clusion of all the Black jurors

by the State before the last avail-

able Black was allowed to be seated

as a juror is no less evil and no

~f-

less constitutionally prohibit-

ed than the same procedure which

results in the total exclusion of

Blacks. We are not unmindful that

some attorneys may leave a token

Black on the jury after they are

assured that there are no more

Blacks available to be seated.

This type of practice does not

lessen the unconstitutionality

of the State's initial exclusion

of Blacks from the jury soley be-

cause they were Blacks.” Id. 106

Ill. App. 3d at 1045, 436 N.E. 2d

at ny

The Appellate Court, First District were recently again

confronted with the issue of jury discrimination by one of its

sub-divisions. See, People vy. Teague. 108 Ill. App. 3d 891, 439

N.E. 24 1066 (1982), which rejected the rationale used by the

Payne Court. The reasons for the rejection was for three basic

reasons: 1) that the court thought that “a defendant is £not/

constitutionally entitled to a petit jury that is as near an

approximation of the ideal cross-section of the community as

the process of random draw and constitutionally acceptable pro-

cedures permit.” Id. 108 Ill. App. 3d at 896s 2) the court next

rejected Payne, supra, predicated upon the fact that, “the

St+ete under the circumstances there posited has to show a basis

for its peremptory challenges, then the peremptory challenges

has been so effectively emasculated as to destroy it function

. « « e” Teague, Id., at 897, and 3) finally the court rejected

the Payne, decision insofar as, ". .. . if the law in Illinois

is to be the abolition of peremptory challenges as enunciated

in Payne, the problem should be met forthrightly by the Leg~

islatureé by abolishing peremptory challenges to make all chall-

enges to make all challenges challenges for cause and place

their exercise in the discretion of the trial judge.” Teague.

Id., at 897.

Adjunctively, the various conflicts in Illinois courts

2/ In People "5 Jackson, 69 Ill. 2a 252, 371 N.E. 2a 602 (1977),

held that "/i_/f the power is judicial in character, the legis-~-

lature is expressly prohibited from exercising it.” Id., at 254.

<9-

in enunicating whether vel non the prosecutor had used its pere-

mptory challenges to strike Blacks from the jury has been incon-

sistent and in direct conflict with other state courts. Compare,

Os... People vy. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978),

where the California Supreme Court reversed convictions of two

black defendants, where no inguiry was made by the trial court

into the prosecutor's reasons for his use of peremptory chall-

enges to exclude blacks from the jury. The court concluded that

“the use of peremptory challenges to remove prospective jurors

on the sole ground of group bias violates the right to trial by

a jury drawn from a representative cross-section of the community

under Article I, section 16, of the California Constitution."

583 P.2d at 761,62. The court in Wheeler, also found reversible

error in the failure of the trial court to ascertain whether

the prosecutor had been motivated solely by their perceived

“group bias" in peremptorily challenging blacks, where the def-

endants had made out a prima facie case that the prosecutor had

been so motivated."

Similarly, in Commonwealth vy. Soares, 377 Mass. 461, 387

N.E. 24 499; cert, denied, 44 U.S. 881 (1979), the Supreme Jud-

icial Court of Massachusetts held that Article 12 of the Declar-

ation of rights of the Massachusetts Constitution proscribes "the

use of peremptory challenges to exclude prospective jurors solely

by virtue of their membership in, or affiliation with particular

defined groupings in the community." 387 N.E. 2d at 515. Accord-

ingly, the court held it was error for the trial court to have

failed to inguire into the reasons for the prosecutor's vse of

peremptory challenges against Blacks, where the prosecutur used

12 of the 44 permptory challenges exercised by him to exclude

Blacks, with the result that only one Black, who was unchallenged

sat on the Black defendants jury. Inquiry was required because

3/ The Wheeler Court did not reveal the precise number of Blacks

excluded by the prosecutor by peremptory challenges.

-10-

a prima facie case of impermissilbe exclusion solely because of

race had been made out by the prosecutor having peremptorily

challenged 92 percent of the black prospective jurors as opposed

to 34 percent of the “available whites”. 387 N.E. 2a at 517.

But even the courts in Soares and Wheeler, supra, have

held that a defendant asserting a systematic exclusion, must

makes a complete record and set forth in prima facie case of dis-

crimination during jury selection. To the contrary, in People vy.

Thompson, 79 A.D. 24 87, 435 N.¥.S. 24 739 (1981) (Titone &

Mangand JJ., dissenting). The court there even went to the ex-

tent to reverse that defendant's conviction, “recogni/zed/. . .

the importance of the assurance of ‘aiffused impartiality’ may

be required by the very language of our State Constitution, which

mandates that no person shall be deprived of right ‘unless by

the law of the land, or the judgment of his peers,'" Id., at 750.

Tnerefore, "{i_/t is apparent that the unfettered use of the

peremptory challenges on the basis of race may, in and of itself,

ultimately defeat the defendant's right to trial by a jury drawn

from a fair cross-section of the community, even though the ven-

ire and panel may have been selected in a mamer consistent with

that right.” Id... at 752+

The court in Thompson, not agreeing in its entirety that

the sole motivation by the prosecutor use of the peremptory chall-

enges were racial, the court nevertheless proclaimed that it was

the trial court’s duty to at least make an attempt to inguire

as to what the prosecutors intentions were. Additionally, in

Thompson, the court held that the failure for the trial court

to make an inquiry was error. Id., at 755.

The significant questions regarding the method by which

juries are selected in Illinois, and the implementation of con-

stitutional safeguards must be addressed by this Court. The ple-

thora of litigation pending on this very issue is a sufficient

indication by the widespread confusion generated by the conflict

of authority within Illinois, in other jurisdictions, and the

inadequacy of the test enunicated in Swain v. Alabama, supra,

where the State prosecutor used what were in effect peremptory

challenges to exclude all six blacks prospective jurors from the

jury that was to try the black defendant. This Court rejected

defendant's claim that this action violated his right under the

Equal protection clause of the Fourteenth Amendment to the Fed-

eral Constitution. After examining the “very old credential” of

peremptory challenges and noting that they are often exercised

“on grounds normally though irrelevant to legal proceedings or

official action, namely the race, religion, nationality, occup-

ation or affiliations of people summoned for jury duty.” Id.,

at 220. This Court concluded:

"In the light of the purpose of the

peremptory system and the function it

serves in a pluralistic society in con-

nection with the institutional of jury

trial, we cannot hold that the const-

itution requires an examination of the

prosecutor's reasons an examination of

the prosecutor's reasons for exercise of

his challenges in any given case. The

presumption in any particular case must

be that the prosecutor is using the State's

challenges to obtain a fair and impartial

jury to try the case before the court. The

presumption is over and the prosecutor there-

fore subjected to examination by allegat-

ions that in the case at hand all negroes

were removed from the jury or that they

were removed because they were negroes.

Any other result, we think, would establish-

a rule wholly at odds with the peremptory

challenges system as we know it.” Id., at

222.

Petitioner submits however, that the standards articulated

in Swain, supra, does not adequately protects a defendant's right

to a petit jury selected from a fair cross-section of the com-

unity. Additionally, if Swain, supra, was before this Court now

on certiorari, inescapably this Court would be compelled to re-

@12-

verse the Swain case, especially in light of the recent decisions

that have been decided after Swain, which strongly criticize

the insurmountable guidelines established by that court. “It

has been almost 18 years since Swain was decided. During that

time two cases have been decided by fthis court/ which we believe

cause the present case and similar cases to be distinguished

from Swain.” People v. Payne, supra, 436 N.E. 2d at 1051. In

1968, this Court held, for the first time, that the 6th Amend-

ment of the Constitution of the United States as it relates to

jury trials applies to states criminal trials. Duncan, supra.

Seven years later, the court decided Taylor v. louisiana, supra.

In Taylor, the court stated: “The background against which this

case must be decided includes our holding in Duncan, that the

Sixth Amendment provision for jury trial is made binding on the

States." Id., at 526.

". . » » Dancap and Taylor, together have significantly

changed the law from the time Swain, was decided vis-a-vis the

6th Amendment right of an accused in a State trial to a jury

drawn from a fair cross-section of the community and the pro-

hibition of the State's affirmative frustration of that right.”

Payne, 106 I11. App. 34 at 1041, 436 N.E. 2d at 1052. At the

time Swain, was decided the 6th Amendment had not yet been re-

cognized as applicable to State criminal trials and the accused's

6th Amendment right tc a jury drawn from a fair cross-section

of the community and tne prohibition of the State's affirmative

frustration of that right were neither raised nor discussed in

Swain. Id.

Moreover, even looking at Swain in retrospect, when the

court said, "/4./n these circumstances, giving even the widest

leeway to the operation of irrational but trial-related sus-

picions and antagonisms. it would appear that the purpose of

the peremptory challege are being perverted. If the State has

not seen fit to leave a single Negro on any jury in a criminal

-13-

case, the presumption protecting the prosecutor may well be over-

come." Id., 223,24, those findings could very well be applied

here, insofar as, the prosecutor did in fact exclude every Black

person on the panel. Therefore, in this regard, petitioner has

effectually met and surpass this part of the Swain test.

Thus given the situations in each of the above cited cases,

different circumstances resulting in each, however, those cases

the defendants were tried in other jurisdictions” nevertheless

that does not preclude this Court from interventing and revers-

ing the petitioner’s conviction, insofar as, here, the petition-

er has made a clear showing of a prima facie case, a deliberate

exclusion and equally important, through a Sixth Amendment entitle-

ment all three elements have been fulfulled in the case at bar,

whereas in the above cited cases, there was no substantial like-

lihood that the defendants could possibly have set forth a case

of purposeful exclusion like the case at bar. But, even more so,

the court in Thompson, supra, reversed the defendant conviction

even though there was no disproportinate amount of jurors ex-

cluded over a extended period of time.

See, e.g-, Pippin v. State, 151 Ga. App. 225, 259 S.E. 2d

88 (1979), where the prosecutor used five of his ten peremp-

tory challenges and the court held that defendant had not stated

a prima facie case. However, compare, State v. Brown, 371 So.

2d 751 (La. 1979); State v. Washington, 385 So. 2d 1162 (La.

1979), the Louisiana Supreme Court ruled that systematic exclus-

ion had been preven under Swain. Radford v. State, 348 So. 2d

880 (Ala. App. 1977), where out 27 prospective jurors, only 6

were blacks the court held without any logicial rationale that

“appellant was not denied any of his constitutional right (state

or federal) by the prosecutor stricking all six blacks from the

venire.” Id., at 882. See, also Com v. Henderson, 438 A.2d 951

(1981) (Nix J., dissenting) “Is justice to sit supinely by and

be flaunted in case after case before a remedy is available?

Is justice oniy obtainable after repeated injustices are demon-

strated? Is there we | justification within the traditions of the

Anglo-Saxon legal philosophy that permits the use of presumption

to hide the existence of an obvious fact?” 438 A.2d gt_961. The

majority in Henderson, had erroneously held that, ” either

the jury role nor the venire need be a perfect mirror of the comnm-

unity or accurately reflect the proportionate strength of every

identificable group.” Id., at 953. Pinally, Drew v. State, 588

S.W. 2d 562 (Tenn. 1979). The court there sporadic evaluation

of the prosecutor use of the peremptory challenge. The court

was primarily sub silento on the issue of the jury discriminat-

ion.

CONCLUSION

For the foregoing reasons, petitioner Joseph Miller res-

pectfully requests that a writ of certiorari be issued to re-

view the judgment of the Illinois Appellate Court.

Respectfully Submitted,

Ya atph Pi AL Lea

Joseph Miller, pro ge

Stateville Corr. Ctr.

P.O. Box 112, N-01855

Joliet, IL. 60434

anni tact es RET te tae

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOSEPH MILLER,

Petitioner,

STATE OF ILLINOIS,

Respondent.

CERTIFICATE OF SERVICE

Tos Alexander L. Stevas, Clerk Mr. Richard M. Daley

U.S. Supreme Court State's Attorney

Supreme Court Eldg. #500 Richard J. Daley Ctr.

Washington, D.C. 20543 Chicago, IL. 60602

Mr. Tyrone C. Fahner

Attorney General

#188 W. Randolph Street

Chicago, IL. 60601

4. Pursuant to Rule 33 of the Rules of the Supreme Court

of the United States, I personally forwarded the attached pet-

itioners upon the above indicated parties--- this by personally

forwarding these petitions before the undersigned Notary Public

with agreement to delivery through the United States Mail.

2. I, Joseph Miller, being first duly sworn upon oath,

deposes and avers that the above indications are true and corr-

ect.

Va

Affiant: ‘voseph

Stateville Corr. Ctr.

P.O. Box 112

Joliet, IL. 60434

SUBSCRIBED AND SWORN TO BEFORE ME

ms___/ pay orp Roe , 1982

sf 4 | 2

NOTARY a

MY COMMISSION EXPIRES_@2 2) _., 1943

-16-

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOSEPH MILLER,

Petitioner,

STATE OF ILLINOIS,

Respondent.

ee wat

Joseph Miller, (hereinafter petitioner), asks leave to

file a petition for a writ of certiorari to the United States

Supreme Court without prepayment of cost and to proceed in forma

pauperis pursuant to Rule 53 of this Court.

Petitioner's affidavit in support of this motion is att-

ached hereto.

Respectfully Submitted,

/ * F

vasiph Mill

Joseph Miller, pro ge

Stateville Corr. Ctr.

P.O. Box 112, N-01855

Joliet, IL. 60434

STATE OF ILLINOIS )

) SS

COUNTY OF WILL )

AFFIDAVIT

I, Joseph Miller, being first duly sworn and states:

4. I am the affiant in the above-entitle cause.

2. I submit this affidavit in support of my motion for

leave to proceed in forma pauperis before this court.

3. Because of my poverty I am unable to pay the cost of

said proceeding.

&. I am unable to give security for the same.

5. I believe that I am entitle to the redress I seek in

6. The nature of said proceeding and the issues involved

are set forth in the petition for writ of certiorari.

WHEREFORE, Affiant have signed the contents thereof, and

eed therein are true and correct.

Vd Jrfit

esead Ly; WW)

Affiant:’Jos@ph Miller, N-O1

x &

aa

SUBSCRIBED AND SWORN TO BEFORE ME

: aa

Micon

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Sy ancct C | pa ae OY ae ©

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NOTARY PUBLIC

wy COMMISSION EXPIRES, 44922, 19,

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80-1241

Avenue and thought he was a policeman. Defendant said that he and his

“prostitute” were planning to rob a man but something went wronc and he

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had to shoot him. Defendant expressed the hope the girl who was wit!

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him got away

prison.

Chicago Police Officer Thomas Quinn testified he arrested defendant

at 6503 South Claremont, which is about one block from where the deceased

body was discovered. He advised defendant of his constitutiona: rights,

and defendant said he understood them. He transported defendant to thi

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police station where he ag

rights and defendant repeat d his understanding of then.

Assistant State's Attorney James Davidson sestified that at

knew them, but wanted to speak to his mother first. Defendant then

enumerated his rights to the assistant State's Attorney. After defendant

met with his mother, Davidson again tol

him of his rights, but defendant said that he did not have to because

he understood them. Defendant then gave an oral statement. Seginning

at 11:04 a.m., defendant gave a written statement which was taken down

by an official court reporter. After the statement was transcribed,

t, defendant stated he was 20 years

defendant signed it. In this statemen

of age and attended the Prairie House Drug Abuse Program. A girl, whose

name he Gid not wish to reveal, and he had planned to rob a man to ge*

ef

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80-1241

instructed the jury:

"You have received your instructions and

verdict forms.

Continue to deliberate.

a a a ee « _ 3 * > 4400

Defendant contends this instruction did not adequately inform the jut

a - .] , - é

of its options, that there was a reasonable basis for the jury § nf ,ONn,

iy

bd he a»? * - _ a é ‘ é‘

and the jury's inguiry expressed doubt concerning a crucia, matter ©:

j 3 ~* y en ¢ P ® —_— : Bl —- ’ OF

law which the court was required to ciarify. (People v. Morris L198

: eo};

Cape DRESS at EOTeT TENE Tra. SENS Ee Whe eHereeie et ter

Ay Oye oe tne eaeted

PS Eee ere pet Pewanein 2c tes

a ~~ > mee ~ & wee we ee

oy >} co -~ £m woe e

You will be provided with 8ix forms 0+

“7 wot o » - an ~ * ser “ * cyte * a areecd

vergict. wonen New 1a e ed Lmous. ager od

, vay oa . ‘ 4 7 3 b +,

upon your verdicts you wiii seiect the forms

, 7 _ : a — : :

which rez.aect your verdicts and sign them as

have stated.

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guilty or not guilty of murder, either guilty or not guilty ©

armed robbery, and either guilty or not guilty of armed violence. Ir

trial

our opinion there was no basis for the jury's confusion, and the

Aes

court did not abuse its discretion by informing the jury it had alread,

The jury

received its instructions and it should continue to deliberate.

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60-1241

ene~seateCOneenae this argument was merely “a fair response +5

aPyumen tie by Lhe defense. We consider the semarke improper and not a

EE

rang ont i

camefy opyectien wae Been made PRS a ene Che by sustatring-the

Obiechidin Pin ARALENALA Nn LDAiNRpabessareqare the” comments; “coure ave

epmmactedstner¥HOr” (People v. Carlson (1980), 79 Ill. 24 564, 577,

404 N.E.2d 233.) Despite the lack of objection, if the trial error is

so prejudicial that real justice has been denied or the verdict of the

jury may have resulted from such error, it may be noticed as plain error

under Supreme Court Rule 615(a). (73 Ill. 24 R. 615(a); People v.

Carlson, 79 Ill. 24 564, 577-78.) OA 0 ALAA LLYOCLLEE LLLP LE LE I

Defendant next contends that improper double enhancement occurred

when he was convicted and sentenced both for attempted armed robbery as

well as armed violence based on attempted armed robbery. Since attempted

robbery, without 4 weapon, is a class 3 felony, the presence of a weapon

elevates it to a class 1 felony. Defendant reasons that the armed

violence charge predicated on the attempted armed robbery enhances the

penalty again, by making the same conduct 4 class X felony. Defendant

cites People v. Haron (1981), 8S Ill. 24 261, 422 N.E.2d 627, which we

yi

‘

80-1241

consider not in point because in Haron a misdemeanor was enhanced to a F

felony and then to a class X felony. Since the attempted armed robbery

conviction and the armed violence conviction were based on the same

conduct, and since all the elements of attempted armed robbery were

contained in the armed violence conviction, under People v. King (1977), ‘

66 Ill. 426 335i. 365 N.E.2d 838, the le er offense, attempted armed

robber; ana the sentence imposec there must be vacated cf Pe ple :

Burnett¢ (1961), 9 ii; App. 3c 1015, 1022 423 N.E 2a 1133. q

Finally. defendant contends he was denied due process and a fair

trial by jury because the State used all of its peren ry challenge

in su » manner as to exclude all 14 black people challenged from servi!

n the jury. Defendant was a black man, and the victim was a white man.

yet, the State contends, that in order to establish purposeful discrimina-

tion, defendant must do more than merely show that blacks were excu ed

from his jury through the prosecution's use of its peremptory challenge

As the supreme court said in People v. Harris (1989). 17 Yil. 26 446,

450-5]. 161 N.E.2d 809, the right of peremptory challenge 15 @ Su tantial

right which may “be exercisec or not exercised, ccording to the judgment,

will or caprice of the party entitled thereto.”

Although the practice of using the peremptory challenge ¢t strike

all blacks from the jury has been condemned, the evidence of purposeful

exclusion must be apparent, and it is the responsibility of the trial

court to determine whether the State has properly exercised its peremptory

challenges. (People v. Smith (1980), 91 Ill. App. 3d 523, §31-32, 414

80-1241

se

+

~

ae Ay

SO nae ai Péople v. Fleming (1980), 91 Ill. App. 34 99, 4i37°N°TETze

i]

13307~Peopre7v. Bracey (1981), 93 Ill. App. 30 S04, 417 N.E.2E°IORM;

a Peopre vr Tavinger Tloel), 102 Ill. App. 3d 662, _ NvSr@=————t In

the.cace~ut'"rar, tne defense brought rts CONTENTION to the triar courte >

<uveEention.” ~The trial court dia not Tina” ene" State-was-exnerorstry = CS

pewemptory tMal lenges improperly anc, On eee wer cae Say ere

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The judgment of conviction and the sentence for attempt is

vacated; in all other respects, the judgment of the circuit court of

Os.

Cook County is affirme

Dated at Chicago, Illinois, this iith day of MARCH , 1982.

-~ 9.