People v. Andrews

• Decision Date: 20 February 1992
• Docket Number: No. 67718,67718
• Citation: 146 Ill.2d 413,167 Ill.Dec. 996,588 N.E.2d 1126
• Parties: , 167 Ill.Dec. 996 The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Lawrence ANDREWS, Appellee and Cross-Appellant.
• Court: Illinois Supreme Court

Page 1126

588 N.E.2d 1126

146 Ill.2d 413, 167 Ill.Dec. 996

The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Lawrence ANDREWS, Appellee and Cross-Appellant.

No. 67718.

Supreme Court of Illinois Feb. 20, 1992.

Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Randall Roberts and Marilyn Schlesinger, Asst. State's Attys., of counsel), for the People.

Michael J. Pelletier, Deputy Defender, and Kenneth L. Jones, Asst. App. Defender, of the Office of the State App. Defender, Chicago, for appellee and cross-appellant.

Justice BILANDIC delivered the opinion of the court:

Defendant, Lawrence Andrews, was convicted in a jury trial of murder (Ill.Rev.Stat.1987), ch. 38, par. 9-1), armed robbery (Ill.Rev.Stat.1987, ch. 38, par. 18-2), and aggravated battery (Ill.Rev.Stat.1987, ch. 38, par. 12-4). The trial court sentenced defendant to an extended term of 70 years' imprisonment on the murder conviction, 30 years' imprisonment on the armed robbery conviction, and 5 years' imprisonment on the aggravated battery conviction. Subsequent to defendant's trial, but during the pendency of his direct appeals, the United States Supreme Court handed down its decision in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. On defendant's first appeal, the appellate court held that defendant had established a prima facie case of discrimination in the selection of his jury in violation of Batson. The appellate court remanded the cause to the trial court with directions to conduct a hearing to allow the State to come forward with race-neutral reasons for the use of its peremptory challenges. (People v. Andrews (1988), 172 Ill.App.3d 394, 122 Ill.Dec. 369, 526 N.E.2d 628.) On the parties' cross-appeals to this court, we held that defendant was not eligible for an extended-term sentence and that the appellate court erred in deciding the Batson prima facie case issue. (People v. Andrews (1989), 132 Ill.2d 451, 139 Ill.Dec. 469, 548 N.E.2d 1025 (Andrews I ).) We retained jurisdiction over the matter and remanded the cause to the trial court for a hearing to allow defendant to attempt to establish a prima facie case of racial discrimination under Batson. The trial court conducted a hearing and determined that defendant had failed to establish a prima facie case. The trial court proceeded to resentence defendant to 40 years' imprisonment for murder, 20 years' imprisonment for armed robbery, to run consecutively, and 5 years' imprisonment for aggravated battery, to run concurrently. We granted defendant's motion to set a briefing schedule in this court, limiting the issues to those concerning defendant's jury selection only.

The limited nature of our review requires only a brief recitation of the facts. Additional procedural facts will be discussed as needed in our analysis of each issue. On February 20, 1984, the murder victim, Richard Steinbrecher, and his girlfriend, Angela Atiles, exited the Eisenhower Expressway in their automobile and stopped at a traffic signal. While they waited for the light to change, two men, one of whom Atiles identified as defendant, approached the vehicle. Defendant entered the automobile and pointed a gun at both occupants. Defendant then fatally shot Steinbrecher, hit Atiles in the eye with the gun and demanded money from Atiles. Atiles gave defendant all the money she had and defendant and the other man left.

Two issues are presented for our review: (1) whether the trial court improperly prevented defendant from presenting certain testimony at the Batson hearing; and (2) whether the trial court's determination that defendant had failed to establish a prima facie case was against the manifest weight of the evidence.

I

Defendant first contends that the trial court erroneously prevented defendant from presenting certain testimony at the Batson hearing. Defendant was tried twice for the crimes perpetrated upon

Steinbrecher and Atiles. At the first trial, defendant's codefendant was acquitted of murder and the jury was unable to reach a verdict on the issue of defendant's guilt. Defendant's second trial commenced in January 1986 and resulted in defendant's convictions. The same prosecutors and the same defense attorneys participated in both trials.

At the Batson hearing conducted pursuant to this court's mandate, defendant presented the testimony of the attorney who represented him at both trials, Donald Bertelle. Defendant attempted to elicit from Bertelle testimony regarding an alleged conversation Bertelle had engaged in with members of defendant's first (hung) jury after the mistrial was declared. The State's objection to this line of questioning was sustained. After the objection was sustained, defense counsel made the following statement: "[J]ust for the record I would introduce that or offer that to show if in fact the prosecutors were present this goes into their thinking when selecting the second jury." Defense counsel then proceeded to continue her examination of Bertelle, without revisiting that line of questioning.

Defendant asserts that the trial court erroneously sustained the State's objection to this testimony. Defendant argues that the offered testimony would have revealed that the prosecutors heard something during that conversation which might have led them to believe that the presence of blacks on the first jury contributed to the failure to convict. Thus, the argument goes, the prosecutors would then have had a motive to discriminate against blacks in choosing the second jury. Defendant points out that Batson directs that a trial court should consider "all relevant circumstances" in resolving the prima facie case issue. (Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.) Defendant argues that this evidence was a relevant factor which should have been considered in determining whether he had established a prima facie case.

The essence of defendant's argument is that evidence he attempted to present was wrongly excluded. It is well recognized that the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court. (See People v. Jackson (1989), 180 Ill.App.3d 78, 91, 129 Ill.Dec. 321, 535 N.E.2d 1086; Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill.App.3d 1052, 1066, 104 Ill.Dec. 52, 502 N.E.2d 315; M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 103.7, at 19 (5th ed. 1990).) The purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. (Jackson, 180 Ill.App.3d at 91, 129 Ill.Dec. 321, 535 N.E.2d 1086.) The failure to make an adequate offer of proof results in a waiver of the issue on appeal. Jackson, 180 Ill.App.3d at 91, 129 Ill.Dec. 321, 535 N.E.2d 1086; M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 103.7, at 20 (5th ed. 1990).

Where an objection is sustained to the offered testimony of a witness, an adequate offer of proof is made if counsel makes known to the trial court, with particularity, the substance of the witness' anticipated answer. (M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 103.7, at 21 (5th ed. 1990).) An offer of proof that merely summarizes the witness' testimony in a conclusory manner is inadequate. (Mulhern v. Talk of the Town, Inc. (1985), 138 Ill.App.3d 829, 834, 93 Ill.Dec. 282, 486 N.E.2d 383.) Neither will the unsupported speculation of counsel as to what the witness would say suffice. (Yassin, 150 Ill.App.3d at 1066, 104 Ill.Dec. 52, 502 N.E.2d 315.) Rather, in making the offer of proof, counsel must explicitly state what the excluded testimony would reveal and may not merely allude to what might be divulged by the testimony. (People v. Brown (1982), 104 Ill.App.3d 1110, 1119, 60 Ill.Dec. 843, 433 N.E.2d 1081.) The offer serves no purpose if it does not demonstrate, both to the trial court and to reviewing courts, the admissibility of the testimony which was foreclosed by the sustained objection. People ex rel. Fahner v. Hedrich (1982), 108 Ill.App.3d 83, 91, 63 Ill.Dec. 782, 438 N.E.2d 924.

We find that, in the instant case, defense counsel failed to make an adequate offer of proof as to the substance of Bertelle's testimony concerning the alleged conversation. Defense counsel's sole "offer of proof," if it can be termed that, consisted of her statement that "if in fact the prosecutors were present this goes into their thinking when selecting the second jury." No specifics were offered concerning the content of the statements that were made during the alleged conversation. In fact, no offer whatsoever was made as to what was said in this conversation. There is thus no record from which this court can determine if the excluded evidence had any relevance to the proceedings at hand. Defense counsel's statement amounted to no more than mere speculation as to what she believed the relevancy of the testimony might be, without any reference to what the testimony would actually consist of. Such speculation is not sufficient to preserve the issue for review. (See Yassin, 150 Ill.App.3d at 1066, 104 Ill.Dec. 52, 502 N.E.2d 315.) We thus conclude that defendant's failure to make an adequate offer of proof resulted in the waiver of this issue on appeal.

II

Defendant next argues that the trial court erred in determining that defendant had failed to establish a prima facie case of discriminatory jury selection. Defendant, who is black, contends that the evidence was sufficient to raise the inference that the prosecution had used its peremptory challenges to exclude black venire-persons based solely on their race.

As noted, defendant's second trial commenced in January 1986. Following the voir dire and selection of defendant's jury, defense counse...