People v. Butler

• Decision Date: 22 September 1970
• Docket Number: No. 42581,42581
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Truman BUTLER, Appellant.
• Court: Illinois Supreme Court

Page 89

263 N.E.2d 89

46 Ill.2d 162

The PEOPLE of the State of Illinois, Appellee, v. Truman BUTLER, Appellant.

No. 42581.

Supreme Court of Illinois.

Sept. 22, 1970.

Edward Litak, Public Defender, Danville, for appellant.

William J. Scott, Atty. Gen., Springfield (John P. O'Rourke, Special Prosecutor, and Fred G. Leach, Asst. Atty. Gen., of counsel), for the People.

UNDERWOOD, Chief Justice.

Truman Butler was found guilty of burglary and theft by a jury in the circuit court of Vermilion County and was sentenced to the penitentiary for a term of 1 to 3 years. He appeals directly to this court pursuant to our Rule 302(a)(2), Ill.Rev.Stat.1969, c. 110A, § 302(a)(2) alleging the denial of a constitutional right.

Defendant's constitutional assertion is that 'extreme racial imbalance in a jury venire which results in total exclusion of Negroes on the jury impaneled to try a criminal case against a Negro is a violation of due process and equal protection of the laws.' He states that Negroes comprise 12% Of the population of Vermilion County, that there was only one Negro on the venire and that this Negro was eliminated from service on the petit jury because of a peremptory challenge by the prosecution. He concludes by stating that the total absence of Negroes from a jury is contrary to the principle set out in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

Swain does not hold that a Negro defendant is entitled to a Negro or Negroes on the jury. The principle of Swain is simply that 'a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.' (380 U.S. 202, 204, 85 S.Ct. 824, 826, 13 L.Ed.2d 759, 763.) The court in Swain also stated: 'But purposeful discrimination may not be assumed or merely asserted. (Citations.) It must be proven, (citations) the quantum of proof necessary being a matter of federal law.' (380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 764.) As to the burden of proof, the court stated in Whitus v. George: 'The burden is, of course on the petitioners (defendants) to prove the existence of purposeful discrimination, (citation). However, once a Prima facie case is made out the burden shifts to the prosecution.' 385 U.S. 545, 548, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599, 603--604.

There is nothing in the record concerning this issue except the statement by defendant's trial counsel that 12% Of the population of Vermilion County is Negro and the fact that there was only one Negro on the venire. This does not make a Prima facie case of purposeful discrimination. (People v. Cross, 40 Ill.2d 85, 237 N.E.2d 437.) The specific answer to defendant's general contention is found in the statement in Swain that 'a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn.' 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766.

Furthermore, the fact that the prosecutor peremptorily challenged the only Negro on the venire is not subject to constitutional attack. In Swain the prosecutor peremptorily challenged the only 6 Negroes on the venire. After analyzing the history and purpose of the peremptory challenge the court stated: 'In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.' 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773.

Defendant's next contention requires a brief description of the evidence presented at the trial. About 7:45 P.M. on May 21, 1968, Tom Brennan, Lloyd Barton and John Bailey were working on race cars in the rear of the building housing Bill Smith's Auto Parts business. They heard footsteps on the roof, went outside and saw two men jump from the roof and run. One of the men, identified as the defendant, ran back to look in the weeds for tools they had dropped and then ran off again. Brennan chased them to a car, recognized defendant, who had been a grade and high school classmate, getting into the car and wrote down the license number. Barton also identified defendant as one of the men who jumped off the roof.

Charles Tucker, a...