People v. Banks

• Decision Date: 02 March 1993
• Docket Number: No. 1-91-0063,1-91-0063
• Citation: 611 N.E.2d 1270,243 Ill.App.3d 525
• Parties: , 183 Ill.Dec. 622 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel BANKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1270

611 N.E.2d 1270

243 Ill.App.3d 525, 183 Ill.Dec. 622

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel BANKS, Defendant-Appellant.

No. 1-91-0063.

Appellate Court of Illinois First District, Second Division.

March 2, 1993.

Michael J. Pelletier, Deputy Defender of Illinois, Chicago, for appellant (Manuel S. Serritos, Asst. Defender, of counsel).

Jack O'Malley, State's Atty. of Cook County, Chicago, for appellee (Renee Goldfarb and Linda Woloshin, Asst. State's Attys., of counsel).

Justice SCARIANO delivered the opinion of the court:

Defendant Samuel Banks was indicted for the offenses of aggravated criminal sexual assault, criminal sexual assault, and attempted criminal sexual assault for events occurring on July 5, 1987. A jury convicted him of criminal sexual assault and attempted criminal sexual assault, and he was sentenced to an extended term of 16 years in the custody of the Illinois Department of Corrections.

The following evidence was adduced at trial. ¹ On July 4, 1987, Ellen Puff (Ellen), a student at Northwestern University, and her roommate Michelle Conway (Michelle) hosted a party at their apartment. The victim, J.J., and her fiancee, Rito, were invited to the party and arrived about 10 p.m. During the party, between the hours of 9 p.m. and 3 a.m., J.J. consumed about 10 glasses of beer.

The party broke up some time after 3 a.m., and about an hour later, Ellen suggested to the remaining guests that they go to the beach for a swim. Ellen, J.J., and Ellen's friend Mike Gallagher (Mike) ultimately decided to go to the beach which was about a ten-minute walk away. As they approached the beach, Ellen and Mike ran far ahead of J.J. and decided to skinny dip, so they took off their clothes and swam far into Lake Michigan. When J.J. finally arrived at the beach, she heard Ellen and Mike in the lake; however, as the two swam farther out, she lost contact with them. J.J. then took off her sandals and walked along the beach and into the water. At some point, she decided to go a bit farther into the water to try to reach Ellen and Mike. In order to keep her dress dry while doing so, J.J. took it off and put it on the beach. Wearing only her underwear and brassiere, she waded into the water until it was slightly above her knees, but when she still could not see or hear Ellen and Mike, J.J. decided to get out of the lake and try to find her way back to Ellen's apartment.

As J.J. turned back toward the beach, she saw defendant between her and the place where her clothes were located on the beach. J.J. began to run towards the beach, but defendant grabbed her by the arm and she fell into the water. She tried to resist defendant, but he repeatedly dunked her head under the water so that she was unable to breathe. Fearing for her life, J.J. decided to stop resisting defendant. She asked him what he wanted, and he told her to "love me or suck me." Defendant then opened his pants, pushed J.J.'s head down, and forced her to perform fellatio on him. After J.J. performed oral sex on defendant, he removed her underwear and tore off her bra, scraping her skin. Defendant then performed oral and vaginal sex on her. All the while, J.J. tried to calm defendant by talking to him, and he told her that his name was Carl, that he was a drummer, and that he had three children.

After the assault, J.J. exited the water and dressed. As she walked back to Ellen's home with defendant at her side, J.J. saw two police cars in the distance, and she subtly waived her left arm up and down in an attempt to signal them. Defendant, however, grabbed her arm and pulled her to the other side of the street. Eventually, J.J. could no longer see the police cars, and she began to yell at defendant, asking him "how could you do this?"

Meanwhile, Michelle and others back at the apartment became worried as to the whereabouts of Ellen, Mike and J.J.; therefore, Michelle, Rito and two others, Dora and Claudio, began to search for the three. They found Ellen and Mike, who were walking back from the lake. Ellen and Mike told them, however, that they did not know where J.J. was. The group then returned to the apartment and split up to search for her.

As Michelle and Claudio drove south on Foster Avenue, Michelle saw police cars near a light pole which had been knocked down. Claudio asked the officers if they had seen J.J., and they replied that she might be east on Sheridan Road near the lake. Michelle drove in that direction and saw J.J. and defendant from about 200 yards away. As Michelle drove up to the two, she heard defendant say to J.J., "I love you. I'll never forget you." Defendant then walked quickly through the Northwestern University campus.

J.J. entered the back seat of Michelle's car and immediately curled up in a fetal position and began to cry. Michelle asked her what was wrong, and J.J. told her, "I've been raped." Soon thereafter, a police car pulled around the corner, and Michelle sounded the car horn. Because J.J. had not yet composed herself, Michelle explained to the police officer what had happened to J.J. Michelle also told the officer that the man she had seen next to J.J. was 5'5"' to 5'6"', 150 pounds, had short hair and a short beard, and was wearing blue jeans and an open, shortsleeved blue shirt. After the officer helped J.J. into the back seat of the squad car, she described her attacker as about 5'5"' and 150 pounds.

The officer then took J.J. to the emergency room at Evanston Hospital where she was treated by Bonnie Rich, R.N. J.J. told her that she had been forced to engage in oral and vaginal intercourse with defendant and that he had dunked her repeatedly in the lake. J.J. had abrasions on the side of her neck and on her knees, a bruise on her arm, mottled skin, and was pale with blue blotches.

After being treated at the hospital, J.J. went to the police station where she spoke with detectives to whom she repeated her description of the assailant, adding that he had a medium to dark complexion. The detectives showed her a series of photographs, and she immediately picked defendant's photo from the array, indicating that his beard was shorter than shown in the picture. Michelle also selected defendant's picture from that same array of photographs. Based on that information, the detectives obtained a warrant for defendant's arrest and apprehended him in January of 1988.

As noted above, the jury found defendant guilty of criminal sexual assault and attempted criminal sexual assault, but not guilty of aggravated criminal sexual assault. The order entered by the trial court, however, states that the defendant was found guilty of all three offenses.

In his post-trial motion, defendant argued, inter alia, that the prosecutor used his peremptory challenges purposefully to exclude African-Americans as jurors in violation of Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. After hearing oral argument on the Batson issue, the court denied defendant's motion, finding that the prosecutor did not exercise his peremptory challenges in a racially discriminatory manner. Finally, after hearing testimony on aggravation and mitigation, the court sentenced defendant to 16 years' in the custody of the Illinois Department of Corrections.

Defendant appeals his conviction, claiming that his right to equal protection under the law under Batson was violated because the State intentionally used its peremptory challenges to exclude African-Americans from the jury, and that the prosecutor, during his rebuttal argument, improperly commented on his failure to testify.

I.

As to his Batson claim, the State asserts that defendant waived this issue for purposes of appeal because he did not object to the jurors' having been excluded by the prosecutor before they were sworn, and that even if the issue was not waived, the trial court correctly determined that the prosecutor did not exclude potential jurors on the basis of race.

A.

The State's waiver argument is unavailing. It is true that our supreme court has repeatedly held that a defendant's failure to object to a prosecutor's use of peremptory challenges before the jury is sworn results in a waiver of that claim. (People v. Pecor (1992), 153 Ill.2d 109, 118-119, 180 Ill.Dec. 50, 55-56, 606 N.E.2d 1127, 1132-1133; People v. Henderson (1990), 142 Ill.2d 258, 283, 154 Ill.Dec. 785, 797, 568 N.E.2d 1234, 1246; People v. Andrews (1989), 132 Ill.2d 451, 458, 139 Ill.Dec. 469, 472, 548 N.E.2d 1025, 1028; People v. Evans (1988), 125 Ill.2d 50, 61-62, 125 Ill.Dec. 790, 794, 530 N.E.2d 1360, 1364.) The cited cases reason that "requiring a timely objection before the jury has been sworn and the venire dismissed allows a trial court to conduct a hearing while the chosen and stricken venirepersons are still present and before trial has begun." See e.g., Andrews, 132 Ill.2d at 458, 139 Ill.Dec. at 472, 548 N.E.2d at 1028.

The State's argument is untenable, however, because our supreme court has consistently held in the Batson context that the doctrine of waiver applies to the State as well as to the defendant (see, e.g., Andrews, 132 Ill.2d at 458, 139 Ill.Dec. at 472, 548 N.E.2d at 1028), and that therefore where the defendant raises a Batson claim at the trial level, and the State argues the merits of the claim without objecting to its timeliness, the State cannot assert that the Batson claim is waived on appeal. Henderson, 142 Ill.2d at 283, 154 Ill.Dec. at 797-98, 568 N.E.2d at 1246-47; Andrews, 132 Ill.2d at 458, 139 Ill.Dec. at 472, 548 N.E.2d at 1028; People v. Harris (1989), 129 Ill.2d 123, 171, 135 Ill.Dec. 861, 882, 544 N.E.2d 357, 378.

In the case at bar, the State did not object to the timeliness of defendant's Batson claim before arguing its merits at the post-trial stage. Accordingly, we find that the State waived its waiver argument; we thus reach the merits of defendant's Batson claim.

B.

Prior to the United States...