# Petition — Joseph Miller v. State of Illinois 120 Ill.App.3d 495 (1983) (No. 82-5840) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1345%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text 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 ——— nae ra ¢ Sy ancct C | pa ae OY ae © ae NOTARY PUBLIC wy COMMISSION EXPIRES, 44922, 19, -18- * et A TiI7TTC oe & Yh od & ws FOURTH ™ Le 8) os 4 * ea 4 a {) % c © «4 ** 4 » & & © Tt + . mi we «< «4 4 < = - ; Se € fa "y o & é? & te a t * cf -« Ee i i 4 t ‘ * r@ -* a $ SS i fs = ‘ $+ be ag >. <3 wt €. &4 - $3 + e | <> ai G& <4 “ * « € ~+ tf % @ ++ . : t es ¢ , te & eo oO aan Ci ONE i MMMM BAAALA ALAA ' i i eee CEN ACES EHH ot che i AS * ei dere < Cons, ? a? ¥ 2 ntar lu it was vo 7: *2 respond direct (3 all 3 charges, or not on r personal utomplacec thei yrosec (4) Stxete's witnesses, the om behind the testimo “ * is an oy ee é « * * abe . * ” “* * Pe coer of ‘ he * o ‘ re S| eS 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 P had to shoot him. Defendant expressed the hope the girl who was wit! ‘ # , cont he would probably go tx y % 0 tw G wi > ia a > 3 a S a ad » + > 8 ee be 2 ® ba pe is” 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 oe aw - ba iw ta w ® i2 t» ® > ® ie 2” te 33 ef? o rh ' w“ F Oo — *" et? > r? ¢ ¢? , 3 (ie 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 bee 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. 4 * . “ rh a ¢? e? & j * . i 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. —- Poy 4 od be - Pe +) 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 >