People v. Evans

• Decision Date: 29 September 1988
• Docket Number: No. 60705,60705
• Citation: 125 Ill.2d 50,530 N.E.2d 1360,125 Ill.Dec. 790
• Parties: , 125 Ill.Dec. 790 The PEOPLE of the State of Illinois, Appellee, v. Johnnie Lee EVANS, Appellant.
• Court: Illinois Supreme Court

Page 1360

530 N.E.2d 1360

125 Ill.2d 50, 125 Ill.Dec. 790

The PEOPLE of the State of Illinois, Appellee, v. Johnnie Lee EVANS, Appellant.

No. 60705.

Supreme Court of Illinois.

Sept. 29, 1988.

Rehearing Denied Dec. 5, 1988.

James J. Doherty and Paul P. Biebel, Jr., Public Defenders, of Chicago, and Kyle Wesendorf and Richard E. Cunningham, Assistant Public Defenders, for appellant.

Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark L. Rotert and Terence M. Madsen, Assistant Attorneys General, of Chicago, and Thomas V. Gainer, Jr., Kenneth T. McCurry, and Inge Fryklund, Assistant State's Attorneys, of counsel), for the People.

Chief Justice THOMAS J. MORAN delivered the opinion of the court:

Defendant, Johnnie Lee Evans, was indicted in the circuit court of Cook County on three counts of murder (Ill.Rev.Stat.1983, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), one count of attempted rape (Ill.Rev.Stat.1983, ch. 38, pars. 8-4, 11-1), and two counts of armed violence (Ill.Rev.Stat.1983, ch. 38, par. 33A-2) against Adrian Allen in violation of the Criminal Code of 1961. The armed violence counts were subsequently nol-prossed by the State. Defendant was tried by a jury and found guilty on the remaining counts of murder and attempted rape. Defendant waived his right to a jury at the separate bifurcated death sentencing hearing. The trial court found that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death on the murder charges and to a 30-year extended term of imprisonment on the attempted rape charge. Defendant's post-trial motion was denied, and he brings a direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 107 Ill.2d R. 603).

During the pendency of defendant's appeal, the United States Supreme Court issued its decision in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Batson held that a prosecutor cannot exercise peremptory challenges to exclude veniremen solely on account of race and that a defendant may show such purposeful discrimination based solely on the facts in his own case. Subsequently, in Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, the United States Supreme Court held that Batson is retroactively applicable to cases pending on direct appeal at the time Batson was decided.

In light of the Batson and Griffith decisions, we issued a supervisory order on May 1, 1987, 107 Ill.Dec. 259, 506 N.E.2d 1314, wherein we retained jurisdiction of this cause and remanded the case to the trial court to "permit the defendant to present evidence to substantiate his claim of unconstitutional discrimination in the exercise of peremptory challenges," at a hearing to be conducted in accordance with Batson. If the trial court found a prima facie showing of discrimination, it was directed to determine whether there were race-neutral explanations for the challenges. The trial court conducted a Batson hearing on July 13, 1987, and found that defendant had failed to establish a prima facie case of purposeful discrimination by the State in the selection of the jury.

On return of the case to this court, defendant raises numerous issues, alleging evidentiary and constitutional errors at all stages of the proceedings. We shall address each in turn.

The evidence reveals that on January 22, 1983, the victim, a 16-year-old black woman, was stabbed to death in an elevator at 3547 South Federal, a building in a Chicago Housing Authority (CHA) complex. She had been stabbed 22 times and her body was found face down in a pool of blood with her coat opened, her shirt pulled up to her shoulders and her pants pulled down to her ankles. Further facts will be detailed as they become relevant to the issues addressed.

The first issue: Was the trial court's finding that defendant failed to establish a prima facie case of racial discrimination under Batson erroneous?

The evidence from the original transcript of voir dire indicates that the State peremptorily challenged 17 veniremen, 5 of whom were black. The State also peremptorily challenged two alternate jurors, one of whom defendant asserts was black. During the course of the voir dire, defendant moved to dismiss the venire on several occasions, claiming that the State was improperly excluding "black males" from the jury. Defendant did not allege as error the State's exercise of a peremptory challenge to remove a black female from the jury. The trial court found that there was no purposeful, systematic or improper exclusion of jurors.

The record further reveals that, on remand, defendant submitted a stipulation, entered into between defense counsel and the State, which pertained to the composition of the jury and the State's use of peremptory challenges. The stipulation indicated that two blacks served on defendant's jury, and that five blacks were peremptorily challenged by the prosecution. The defense put in no other evidence. At the conclusion of the Batson hearing, the trial court found, after considering all of the relevant circumstances, that defendant failed to establish a prima facie case of racial discrimination.

Initially, we note that defendant has waived any right to assert that the female black venireperson, Mary Patton, was improperly stricken from the jury by the prosecutor. Batson requires that the defendant make a timely objection to the prosecutor's peremptory challenge. (Batson, 476 U.S. at 99, 106 S.Ct. at 1724, 90 L.Ed.2d at 89-90.) The peremptory challenge of Mary Patton was never objected to by the defense, either at trial or in post-trial motions. We do not believe that an objection occurring after the jury is sworn can be deemed timely. Therefore, as the defense has objected to the challenge against Mary Patton for the first time on appeal, that particular objection has been waived. People v. Stewart (1984), 104 Ill.2d 463, 488, 85 Ill.Dec. 422, 473 N.E.2d 1227, cert. denied (1985), 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 267; see also State v. Peck (Tenn.Crim.App.1986), 719 S.W.2d 553, 555 ("After a party has assured the court that the jury as empaneled is acceptable, the party will not be heard to complain of the makeup of the jury panel").

Similarly, defendant has waived the right to assert that Bobby Benford, the alternate juror, was improperly peremptorily challenged by the State. Although this juror was mentioned in the defendant's motion for a prima facie finding of discrimination submitted at the Batson hearing, his name was stricken from the roster of excluded blacks set forth in the evidentiary stipulation submitted to the court. There is no independent evidence whatever in the record to establish the race of this juror. Therefore, defendant's objection as to this challenge of Benford is also waived. (See People v. Wheeler (1978), 22 Cal.3d 258, 280-81, 148 Cal.Rptr. 890, 905, 583 P.2d 748, 764.) Accordingly, when determining whether defendant has established a prima facie case of discrimination, we may consider only the remaining four black venirepersons who were excluded.

In Batson the Court reaffirmed the principle "that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposely excluded." (Batson, 476 U.S. at 85, 106 S.Ct. at 1716, 90 L.Ed.2d at 80.) In so holding, the Court rejected the evidentiary standard previously enunciated in Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, which required a defendant to show "the prosecutor's systematic use of peremptory challenges against Negroes over a period of time" in order to establish an equal protection claim. (Swain v. Alabama (1965), 380 U.S. 202, 227, 776, 85 S.Ct. 824, 839, 13 L.Ed.2d 759.) Under Batson a defendant may now rely solely on the evidence concerning the prosecutor's exercise of peremptory challenges at his own trial in order to establish a prima facie case of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1722, 90 L.Ed.2d at 87.

Establishing a prima facie case requires defendant to first show that he is a member of a cognizable racial group and that the State has exercised peremptory challenges to remove from the venire members of that racial group. Second, the defendant is entitled to rely on the fact that peremptory challenges constitute a jury-selection practice that permits those to discriminate who are of a mind to discriminate. Finally, defendant must show that these facts and "any other relevant circumstances" raise an inference that the prosecutor peremptorily challenged veniremen on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

Defendant has met the first element of the Batson test for establishing a prima facie case of discrimination. Defendant is black and the prosecutor exercised peremptory challenges to remove from the venire members of defendant's race. Thus, the only question is whether, considering "all relevant circumstances," defendant has established a prima facie case of discrimination.

The relevant circumstances the trial court may consider when determining whether there was discrimination include: a "pattern" of strikes against black jurors; "the prosecutor's questions and statements during voir dire examination and in exercising his challenges" (Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88); the disproportionate use of peremptory challenges against blacks (State v. Gilmore (1986), 103 N.J. 508, 535-36, 511 A.2d 1150, 1164; People v. Wheeler, 22 Cal.3d[125 Ill.2d 64] at 274-75, 148 Cal.Rptr. at 901-02, 583 P.2d at 760); the level of black representation in the venire as compared to the jury (Batson, 476 U.S. at 93, 106 S.Ct. at 1721, 90 L.Ed.2d at 85; Aldridge v. State (1988), 258 Ga. 75, 365 S.E.2d 111)...