People v. Blackwell, 73240

• Decision Date: 19 January 1995
• Docket Number: No. 73240,73240
• Citation: 164 Ill.2d 67,207 Ill.Dec. 44,646 N.E.2d 610
• Parties: , 207 Ill.Dec. 44 The PEOPLE of the State of Illinois, Appellee, v. Michael A. BLACKWELL, Appellant.
• Court: Illinois Supreme Court

Page 610

646 N.E.2d 610

164 Ill.2d 67, 207 Ill.Dec. 44

The PEOPLE of the State of Illinois, Appellee, v. Michael A. BLACKWELL, Appellant.

No. 73240.

Supreme Court of Illinois.

Jan. 19, 1995.

Charles M. Schiedel, Deputy Defender, and John J. Hanlon, Asst. Defender, the Office of the State Appellate Defender, Springfield, for appellant.

Roland W. Burris, Atty. Gen., Springfield, and James W. Glasgow, State's Atty., Joliet (Rosalyn B. Kaplan, Solicitor Gen., and Terence M. Madsen, Asst. Atty. Gen., Chicago, of counsel), for the People.

Justice NICKELS delivered the opinion of the court:

After a jury trial in the circuit court of Will County, defendant, Michael Blackwell, was convicted of three counts of first degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-1(a)(2)), one count of aggravated battery with a firearm (Ill.Rev.Stat.1989, ch. 38, par. 12-4.2), and one count of reckless conduct (Ill.Rev.Stat.1989, ch. 38, par. 12-5). Defendant waived his right to be sentenced by a jury. Accordingly, the trial court determined whether defendant was eligible for the death penalty and found that he was eligible under section 9-1(b)(3) of the Criminal Code of 1961 (Ill.Rev.Stat.1989, ch. 38, par. 9-1(b)(3)). After considering factors in aggravation and in mitigation, the trial court sentenced defendant to death. Defendant's death sentence was stayed (134 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); Ill.Rev.Stat.1989, ch. 38, par. 9-1(i); 134 Ill.2d R. 603).

I. Background

In his initial brief to this court, defendant raised the following issues on appeal: (1) whether the State used its peremptory challenges to discriminate on the basis of race in violation of Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; (2) whether the evidence supported convictions for second degree murder rather than first degree murder; (3) whether the trial court should have allowed defendant to present final closing argument regarding the issue of second degree murder; (4) whether the State failed to disclose threats made against two witnesses until after trial in violation of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; (5) whether the death penalty was excessive; (6) whether the trial court erred in permitting the State to make a rebuttal argument at the death penalty hearing; and (7) whether the death penalty statute is unconstitutional. After we heard oral argument in this case, the Supreme Court announced its opinion in J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89, prohibiting gender discrimination during jury selection. Defendant then filed a supplemental brief raising the issue of gender discrimination, and the State responded.

Because we find that defendant is entitled to new proceedings pursuant to J.E.B., we remand this cause to the circuit court for a Batson-type hearing regarding gender discrimination. We retain jurisdiction of this case. In this opinion, we discuss only those facts pertinent to the issue of gender discrimination and the rights of the parties under the intervening J.E.B. decision. We reserve ruling on any remaining issues.

During jury selection, the State used 4 of 17 peremptory challenges to remove all four black individuals remaining on the venire after one was stricken for cause. The four individuals challenged by the State were women. Ultimately, the State used 15 of 17 peremptory challenges to remove women from the venire. After voir dire, the jury consisted of five women and seven men.

After jury selection, defendant moved to dismiss the jury venire, pursuant to Batson. In Batson, the Supreme Court held that a prosecutor may not use peremptory challenges to exclude potential jurors from the jury on the basis of race. The Court found that such discrimination violates the equal protection clause and is therefore unconstitutional. The trial court accordingly conducted a Batson hearing. At the hearing, the prosecutor discussed his general strategy during voir dire:

"Another thing that I would point out is as a matter of trial strategy. I deliberately did not ask the court to ask the jurors any questions about their feelings towards firearms, nor did I ask the court to ask them any questions about their feelings towards gangs. I think that to do that unnecessarily highlights those two things, puts it in their mind that they ought to be concerned about gangs and guns. And I deliberately didn't do that because I think I have a pretty good idea at this time having prosecuted cases in this county for 12 years and having lived here all my life, which areas are subject to gang infestation and which aren't.

I would also like to point to the court that my counting of peremptory shows that the prosecution exercised two peremptories as to males and 15 as to females.

* * * * * *

The prosecution, according to my count, exercised two peremptory challenges as to males and 15 as to females. Conversely, the defense exercised eight as to females and 12 as to males.

Another concern that myself and Mr. Tomczak had coming into this case was the concern about the sympathy factor when the jurors are confronted with the testimony of the defendant's mother. I would again point out to the court that based on my experience in trying jury cases, even in cases where I felt I had a lock solid case, I've seen juries stay out for hours and hours having felt sympathy for one or both parents of the defendant when they testified. That kind of thing happens and it's something to take into consideration."

Later in the Batson hearing, when discussing reasons for dismissing one of the prospective jurors, the prosecutor stated: "And again, I pointed out to the court I felt that I had to consider in my jury selection anyone that might feel sympathetic towards the defendant's mother." After the hearing, the trial judge concluded that the State had not discriminated on the basis of race.

After the jury reached its verdicts and after the parties submitted briefs and oral argument to this court, the Supreme Court announced its decision in J.E.B. In J.E.B., the State of Alabama brought a paternity and child support suit in State court against the purported father. In that case, the State used 9 of 10 peremptory challenges to remove male venire members. The jury that was empaneled consisted solely of women. The jury found that the defendant was the father of the child, and the trial court ordered him to pay child support.

In his appeal to the Supreme Court, the defendant argued that the use of peremptory challenges to discriminate on the basis of gender violates the equal protection clause. He therefore asked the Court to extend its holding in Batson to prohibit gender discrimination during jury selection. The Supreme Court agreed to the defendant's request. In its holding, the Court noted that historical discrimination against women has prevented them from serving on juries and perpetuated false stereotypes concerning the abilities of men and women. The Court stated that gender discrimination harms the litigants, the community, and prospective jurors who have been excluded.

In J.E.B., the State argued that men might feel more sympathetic to the arguments of a man involved in a paternity action than women would. The Court rejected this argument, stating that it would "not accept as a defense to gender-based peremptory challenges 'the very stereotype the law condemns.' " (J.E.B., 511 U.S. at ----, 114 S.Ct. at 1426, 128 L.Ed.2d at 102-03, quoting Powers v. Ohio (1991), 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411, 424.) In J.E.B., the Court also stated that women could not be eliminated from the jury because they might be more sympathetic to the arguments of the complaining witness who bore the child.

II. Gender Discrimination

In this case, defendant argues that the prosecutor used 15 of 17 peremptory challenges to eliminate women from the jury because of a concern that women jurors would feel sympathy for defendant's mother. Defendant contends that venire members were eliminated on the basis of gender. According to defendant, this conduct violates the Supreme Court's constitutional mandate in J.E.B.

We first note that J.E.B. arose after the trial was concluded in this case. We therefore consider whether J.E.B. applies retroactively to cases pending on appeal when it was announced. We find that it does. In Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661, the Supreme Court held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." In Griffith, the Court held specifically that the rule established in Batson was to apply retroactively. In J.E.B., the Court extended Batson to prohibit the use of peremptory challenges to discriminate on the basis of gender. Thus, we conclude that J.E.B. applies to cases pending on direct appeal. See also People v. Erickson (1987), 117 Ill.2d 271, 288-89, 111 Ill.Dec. 924, 513 N.E.2d 367.

Next, the State argues that defendant waived the gender discrimination issue by not raising it at trial. Defendant raised an objection to the selection of the jury on the basis of racial discrimination but did not object on the basis of gender discrimination. Ordinarily, a party must raise an objection at trial and in a post-trial motion to preserve the issue for review. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124.) This court has held that a defendant who fails to raise a Batson objection before the jury is sworn has waived the issue. (See, e.g., People v. Evans (1988), 125 Ill.2d 50, 61-62, 125 Ill.Dec. 790, 530 N.E.2d 1360; People v. Pecor (1992), 153 Ill.2d 109, 125, 180 Ill.Dec. 50, 606 N.E.2d 1127.) This court has applied the waiver rule to cases pending on appeal when Batson was first...