People v. Belton

• Decision Date: 22 March 1982
• Docket Number: No. 81-627,81-627
• Citation: 60 Ill.Dec. 881,105 Ill.App.3d 10,433 N.E.2d 1119
• Parties: , 60 Ill.Dec. 881 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernie BELTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1119

433 N.E.2d 1119

105 Ill.App.3d 10, 60 Ill.Dec. 881

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernie BELTON, Defendant-Appellant.

No. 81-627.

Appellate Court of Illinois, First District, First Division.

March 22, 1982.

Steven Clark, Deputy State Appellate Defender, and Bruce E. Mosbacher, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat, Kevin Sweeney and Edward F. Cozzi, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

O'CONNOR, Justice:

Defendant Ernie Belton was sentenced to five years in the penitentiary after his conviction by a jury of the offense of unlawful use of weapons in carrying a loaded firearm in a vehicle within five years of release from the penitentiary. (Ill.Rev.Stat.1979, ch. 38, pars. 24-1(a)(10) and 24-1(b).) He appeals, contending that he was denied a fair trial (1) by the State's exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community and (2) by the prosecutor's final argument. We affirm.

Because no contention is made that defendant was not proved guilty beyond a reasonable doubt, the evidence need not be detailed at length.

At approximately 11:30 p. m. on February 13, 1980, police officers Fitzgerald and Strombeck were driving south on Wells Street in an unmarked car. They turned west onto Schiller Street. A grey Buick was being driven west directly in front of them. Defendant was in the front passenger seat, with Keith Belton, defendant's nephew, in the rear seat behind defendant. Leroy Mayfield was the driver. Defendant turned to look at the unmarked car.

Officer Fitzgerald observed the front passenger window go down and an arm extend from the window with a gun in his hand. When the emergency lights on the police car were activated, the person in the front passenger seat threw the gun. A loaded gun was recovered near the car. Officer Strombeck said that when he approached the car in which defendant was a passenger, the front passenger window was down and the rear window closed.

Defendant testified that he turned to look back because someone said the police were following them. While he was looking back, his nephew sitting behind him in the back seat rolled down the back window, stuck his hand out the window and pulled his hand into the car. Defendant did not see a gun thrown from the car. Defendant further testified that one of the police officers asked his nephew what he threw out the window and his nephew said, "Nothing. I didn't throw nothing out the window."

It was stipulated that defendant had been convicted of burglary February 6, 1978, and released from incarceration from Pontiac Correctional Center September 20, 1979.

We find this evidence sufficient to sustain the jury's guilty verdict.

We disagree with defendant's first contention that he was denied a fair trial by the State's exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community.

At the selection of the jury, the court reporter was excused after preliminary comments by the trial court to the prospective jurors. After nine members of the jury panel had been selected, defense counsel made the following oral motion:

"MR. GANT: I'm moving at this time that the jurors who have been selected that that entire venire be dismissed and that a new venire be brought up. I predicate my motion, Your Honor, on one very, very blatant, I feel anyway, abuse by the prosecution of its use of peremptory challenges. The prosecution has exercised, according to my records, peremptory challenges; of the 8, 7 have been used against either blacks or other minorities."

He also noted that "(t)here is nothing in the information that we were able to garner to indicate that these 7 minorities were excused for any other reason than race." The prosecutor argued that the State need not give any reason for the exercise of a peremptory challenge and that one black had been seated on the jury. Defense counsel countered that the fact that one black had been put on the jury did not vitiate the argument that there had been a systematic exclusion of blacks from the jury. He orally gave very brief biographic sketches of some of the challenged jurors and noted that some had backgrounds "that a prosecutor looks for in a juror." The court denied defendant's motion, stating that defense counsel had "not made a prima facie case that the State has systematically excluded blacks or in broader terms minorities."

After the selection of the jury had been completed, the following discussion took place prior to the State's opening statement:

"THE COURT: Mr. Gant, while your client is present, I wanted to make a comment regarding a motion you made regarding the systematic exclusion of minorities. I made no notes during yesterday's selection as to the race or background of the 10 people you excluded and approximately 12, 13 or 14 the Court excused. However, it did come to my mind when I brought the 9 jurors in the court room this morning, Jesus Quintana (phonetic spelling) who is a juror and I suppose you would catagorize him as a minority, I would, he was not excluded by the State.

"MR. GANT: I got lucky that time.

"THE COURT: I guess there are two minorities of the original nine. I just wanted to make that point for the record.

"MR. GANT: All right."

Defendant argues that the above proceedings show an abuse of the peremptory challenge, thus denying defendant an impartial jury made up of persons representative of the community as required by Article I, section 8, of the Illinois Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.

The applicable test for the use of peremptory challenges is set out in Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. Defendant argues that the test in that case is all but impossible for an individual to meet and the proper test is that set out in People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890, which held that where there is a showing by defendant that there is a substantial likelihood that the prosecutor exercised its peremptory challenges so as to deny defendant a jury made up of members representative of the community, it is the responsibility of the trial court to determine whether the State properly exercised its challenges and that this test should be adopted in Illinois.

In People v. Mims, 103 Ill.App.3d 673, 59 Ill.Dec. 369, 431 N.E.2d 1126 (1st Dist.1981), in holding that the defendant there was not denied her federal or state constitutional rights by the State's exercise of its peremptory challenges allegedly so as to exclude black women from the jury, the court said:

"Several Illinois cases have recently considered Wheeler, and reached somewhat different conclusions as to its merit. In People v. Smith (1980), 91 Ill.App.3d 523, 47 Ill.Dec. 1, 414 N.E.2d 1117, the court appears to have followed the reasoning in Wheeler, but declined to reverse on the ground that evidence of purposeful exclusion of blacks from jury service was insufficient. (91 Ill.App.3d at 530-32, 47 Ill.Dec. 1, 414 N.E.2d 1117.) The language in Smith, in support of Wheeler, has been subsequently narrowly construed as dictum in People v. Vaughn (1981), 100 Ill.App.3d 1082, 56 Ill.Dec. 508, 427 N.E.2d 840, and People v. Bracey (1981), 93 Ill.App.3d 864, 870, 49 Ill.Dec. 202, 417 N.E.2d 1029. In both Bracey and Vaughn, the courts declined to decide whether Wheeler should be adopted in Illinois, because defendant failed to establish a prima facie case of purposeful discrimination.

"The court in People v. Fleming (1980), 91 Ill.App.3d 99, 105-06, 46 Ill.Dec. 217, 413 N.E.2d 1330, and this court in People v. Allen (1981), 96 Ill.App.3d 871, 878, 52 Ill.Dec. 419, 422 N.E.2d 100, expressly refused to follow Wheeler, finding the test articulated therein vague and uncertain, and one which would severely undermine the purpose of the challenge. In light of the foregoing authorities we decline to alter the rule prevailing in Illinois, particularly where, as in this case, evidence of purposeful exclusion of black females is speculative and insufficient."

The Supreme Court denied leave to appeal in Fleming. (83 Ill.2d 571.) Fleming was followed in People v. Tucker (1981), 99 Ill.App.3d 606, 54 Ill.Dec. 646, 425 N.E.2d 511.

In People v. Gaines (1981), 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046, the Supreme Court of Illinois said (88 Ill.2d at 358-59, 58 Ill.Dec. 795, 430 N.E.2d 1046):

"The defendant's remaining objection to the jury goes to its racial composition. The defendant, who is black, states that the jury contained no black persons, and that that circumstance resulted from the prosecution's having used some of its peremptory challenges to exclude veniremen who were black but were not subject to removal for cause. The defendant concedes that under Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the motives of the prosecution in exercising peremptory challenges are not subject to examination absent a showing that blacks have been systematically prevented from serving on particular juries or from jury service in the county or State, a showing not attempted here. (See 380 U.S. 202, 221-23, 85 S.Ct. 824, 836-37, 13 L.Ed.2d 759, 773-74.) A similar position has been taken by this court in People v. Harris (1959), 17 Ill.2d 446, 450-51, (161 N.E.2d 89) cert. denied (1960), 362 U.S. 928, 80 S.Ct. 755, 4 L.Ed.2d 747; cf. People v. Powell (1973), 53 Ill.2d 465, 477-78 (292 N.E.2d 409); People v. King (1973), 54 Ill.2d 291, 298 (296 N.E.2d 731).

"The defendant cites People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110, in which the...