People v. Andrews

• Decision Date: 21 December 1989
• Docket Number: No. 67718,67718
• Citation: 132 Ill.2d 451,548 N.E.2d 1025,139 Ill.Dec. 469
• Parties: , 139 Ill.Dec. 469 The PEOPLE of the State of Illinois, Appellant, v. Lawrence ANDREWS, Appellee.
• Court: Illinois Supreme Court

Page 1025

548 N.E.2d 1025

132 Ill.2d 451, 139 Ill.Dec. 469

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

No. 67718.

Supreme Court of Illinois.

Dec. 21, 1989.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Inge Fryklund, Renee G. Goldfarb, James E. Fitzgerald and Marilyn F. Schlesinger, Asst. State's Attys., of counsel), for People.

Michael J. Pelletier, Deputy Defender, and Kenneth L. Jones, Asst. Defender, Office of the State Appellate Defender, Chicago, for appellee.

Justice STAMOS delivered the opinion of the court:

Defendant, Lawrence Andrews, was indicted for murder, armed robbery, and aggravated battery, and his first trial resulted in a hung jury. Following a second jury trial, defendant was convicted of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1), armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2), and aggravated battery (Ill.Rev.Stat.1985, ch. 38, par. 12-4). The trial court sentenced defendant to an extended term of 70 years' imprisonment on the murder conviction (see Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3.2(b)), 30 years' imprisonment on the armed robbery conviction, and 5 years' imprisonment on the aggravated battery conviction, all to be served concurrently. The appellate court found that defendant had established a prima facie showing of racial discrimination in the State's use of peremptory challenges in violation of the United States Supreme Court decision in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and remanded the cause to the circuit court of Cook County with directions to conduct a hearing to allow the State to come forward with neutral explanations for the use of its peremptory challenges. (172 Ill.App.3d 394, 122 Ill.Dec. 369, 526 N.E.2d 628.) We allowed the State's petition for leave to appeal (107 Ill.2d R. 315(a)).

The issues before this court are whether defendant waived his right to assert a Batson violation and whether the trial court properly sentenced defendant to an extended-term sentence for his murder conviction.

The record establishes the following facts. On February 20, 1984, the victim and driver of the car, 18-year-old Richard Steinbrecher, and his 17-year-old girlfriend, Angela Atiles, exited the Eisenhower Expressway and stopped at a traffic signal. While waiting for the light to change, they were approached by two men, one of whom got into the passenger side of the car where Atiles was sitting and pointed a gun at both Steinbrecher and Atiles. Atiles identified this man as defendant Lawrence Andrews. The other man remained outside the car.

After trying unsuccessfully to pull away, by moving the gear shift, Steinbrecher told the two men to "be cool, we'll give you what you want." Following this, Atiles testified, she heard a "crack" and saw that defendant had shot Steinbrecher. The man she identified as defendant then hit her in the left eye with his gun and ordered, "Give me your money, bitch." She gave him $7, all the money she had, and the men left.

Steinbrecher died as a result of a gunshot wound to his right temple. Atiles was treated for an eye injury.

On appeal, defendant contended, inter alia, that the State used its peremptory challenges to systematically exclude blacks from the jury in violation of the equal protection clause of the United States Constitution, relying on Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, which was held to apply retroactively to cases on direct review when Batson was decided (Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649). Defendant's trial took place in January 1986, and was on direct appeal when Batson was decided on April 30, 1986.

The appellate court rejected the State's argument that defendant had waived the right to raise a Batson challenge. The court found that the appearance of justice in our court system is not fulfilled "if the trial court acquiesces in, condones or fails to preclude attempts by the prosecuting attorney to exclude blacks from the jury solely because they are black." (172 Ill.App.3d at 402, 122 Ill.Dec. 369, 526 N.E.2d 628.) The court went on to find that "[w]e see no difference in considering the issue in this case than we would in considering any other plain error violation of constitutional dimension." 172 Ill.App.3d at 402-03, 122 Ill.Dec. 369, 526 N.E.2d 628.

Notwithstanding its view of the proper role of the trial judge, the court then considered whether defendant had established a prima facie showing of discrimination. The court cited this court's decision in People v. Hooper (1987), 118 Ill.2d 244, 107 Ill.Dec. 250, 506 N.E.2d 1305, in which this court retained jurisdiction of the cause and ordered the circuit court to conduct a Batson hearing to allow defendant in Hooper to attempt to establish a prima facie case; the appellate court, however, finding that Hooper was inapplicable, held that "the material facts are sufficiently demonstrated in the record so that we can decide, without prejudice to the defendant or the State, whether a prima facie case of racial discrimination * * * exists." (172 Ill.App.3d at 403, 122 Ill.Dec. 369, 526 N.E.2d 628.) Finding from its review of the record that the State used all of its eight peremptory challenges against blacks, the court concluded that a prima facie case had been established.

The court remanded the cause to the circuit court for a hearing to allow the State to come forward with a neutral explanation for the use of its eight peremptory challenges. The court ordered that if the State did not come forward with a neutral explanation, defendant's convictions were vacated; if the State presented what the trial court determined to be a neutral explanation sufficient to rebut defendant's prima facie case, defendant's convictions were affirmed.

Before this court, the State argues that the appellate court incorrectly found that defendant did not waive his right to raise a Batson claim. The State contends that defendant has waived his right to raise this issue for two separate reasons. The State first asserts that defendant's trial objection was untimely. Because defense counsel did not object to the State's use of peremptory challenges until after the jury was sworn, the State argues that under People v. Evans (1988), 125 Ill.2d 50, 125 Ill.Dec. 790, 530 N.E.2d 1360, defendant waived his right to raise this issue on appeal. The State also contends that defendant has waived his right to raise this issue because of the lack of evidence in the record to establish the race of the venire and jury; under People v. Gaines (1981), 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046, and Evans, the State argues, a defendant waives the right to raise a claim concerning the State's use of peremptory challenges when he fails to preserve an adequate record of the race of the challenged jurors. The State also contends that the appellate court erred by undertaking a prima facie analysis instead of remanding that issue for the trial court to determine.

Defendant asserts that the appellate court correctly exercised its authority under our Rule 615(a) (107 Ill.2d R. 615(a)) and ruled on his Batson claim as one involving plain error. Defendant also contends that his trial objection was timely. On cross-appeal, defendant argues that that portion of the appellate court's opinion affirming defendant's 70-year extended-term sentence conflicts with this court's decision in People v. La Pointe (1981), 88 Ill.2d 482, 59 Ill.Dec. 59, 431 N.E.2d 344.

I

Defendant initially contends that the question of waiver raised by the State is moot because the appellate court did not reach the waiver issue but instead exercised its authority under Rule 615(a) to rule on the Batson issue as one involving plain error. We find, for the reasons that follow, that the appellate court did not need to rely on the plain error doctrine to reach the Batson issue.

The State correctly notes that this court has found that a defendant's failure to object, before the jury is sworn, to a prosecutor's use of a peremptory challenge to exclude a venireperson results in the waiver of that claim. (People v. Evans (1988), 125 Ill.2d 50, 61-62, 125 Ill.Dec. 790, 530 N.E.2d 1360.) In Evans, this court noted that "[w]e do not believe that an objection occurring after the jury is sworn can be deemed timely." (125 Ill.2d at 61-62, 125 Ill.Dec. 790, 530 N.E.2d 1360. See also Government of the Virgin Islands v. Forte (3d Cir.1986), 806 F.2d 73; United States v. Erwin (5th Cir.1986), 793 F.2d 656; State v. Harris (1988), 157 Ariz. 35, 754 P.2d 1139; Thomas v. State (Miss.1987), 517 So.2d 1285; State v. Peck (Tenn.Crim.App.1986), 719 S.W.2d 553; State v. Castillo (Fla.1986), 486 So.2d 565. But see United States v. Thompson (9th Cir.1987), 827 F.2d 1254; State v. Sparks (1987), 257 Ga. 97, 355 S.E.2d 658.) Requiring a timely objection before the jury has been sworn and the venire dismissed allows the trial court to conduct a hearing while the chosen and stricken venirepersons are still present and before the trial has begun. The record clearly reveals that defense counsel presented a motion for a mistrial, based upon the State's use of peremptory challenges, after the jury was sworn, but before the trial had begun.

This court has held, however, that the principle of waiver applies to the State as well as to defendants. (People v. Harris (1989), 129 Ill.2d 123, 171, 135 Ill.Dec. 861, 544 N.E.2d 357; People v. O'Neal (1984), 104 Ill.2d 399, 407, 84 Ill.Dec. 481, 472 N.E.2d 441.) In Harris, the State argued that the defendant's failure to object to the State's peremptory challenges until after the last jury panel was sworn constituted waiver. This court found that the State had waived its right to object to the timeliness of the defendant's objection, however, because the State did not raise the...