People v. Gilliard

• Decision Date: 16 February 1983
• Docket Number: No. 81-913,81-913
• Citation: 68 Ill.Dec. 440,445 N.E.2d 1293,112 Ill.App.3d 799
• Parties: , 68 Ill.Dec. 440 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven GILLIARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1293

445 N.E.2d 1293

112 Ill.App.3d 799, 68 Ill.Dec. 440

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven GILLIARD, Defendant-Appellant.

No. 81-913.

Appellate Court of Illinois First District, Third Division.

Feb. 16, 1983.

James J. Doherty, Public Defender of Cook County, Chicago (Richard E. Gade, Asst. Public Defender, Chicago, of counsel) for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Lester M. Joseph, Larry J. Crown, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

RIZZI, Justice:

A jury found defendant, Steven Gilliard, guilty of robbery. Defendant, who is Black, contends that the trial court erred in denying his motion for a mistrial because the prosecutor systematically used peremptory challenges during the voir dire examination of the prospective jurors to exclude Blacks from the jury solely because they were Blacks. It is defendant's position that he was denied the type of fair trial guaranteed under the 6th Amendment of the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross section of the community. We reverse the conviction and remand the case for a new trial.

The record demonstrates that the procedure for the selection of the jury began with the trial judge interrogating the prospective jurors. The attorneys then interrogated the prospective jurors in panels of four. The first panel contained one Black and three Whites. The State exercised a peremptory challenge to excuse the Black. When another Black was called to fill the panel, she, too, was excused by the State by the use of a peremptory challenge. When accepted, the first panel of jurors did not contain any Blacks. The second panel contained no Blacks at any time. The third panel contained three White prospective jurors and one Black prospective juror. The State exercised a peremptory challenge to excuse the Black, and the Black was replaced by a White. When accepted, the the third panel of jurors did not contain any Blacks. One of the two alternate jurors who was selected was Black. However, the trial court noted in the record that by that time the State had exercised all of its peremptory challenges, and the State "really had no choice" but to accept the Black as an alternate juror. Defendant did not exclude any Black prospective jurors.

After the jury was selected, defendant moved for a mistrial on the basis that the State had systematically excluded all the Black prospective jurors from the jury, in violation of the rights guaranteed him under the Constitution of the United States. The jury cards were made part of the record in conjunction with the motion. The prosecutor objected to the motion, and as his reasons for opposing the motion, he stated that defendant did not prove why the State excluded the Black prospective jurors and that the State did not have to give any reasons for excluding the Black prospective jurors. The prosecutor then cited and discussed Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the Supreme Court held that the systematic striking of all Blacks from the jury by the State in a single case did not violate the equal protection standard of the 14th Amendment of the United States Constitution. The following statements were then made:

[THE PROSECUTOR]: The People do not have to tell this Court why they excluded anyone from that jury. It [Swain ] further says it's without inquiry and without being subject to Court's control. The whole basis and fact of the word "peremptory challenge," allows the State to exclude persons without telling you why.

We would further like to call the Court's attention to People versus Fleming--

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THE COURT: Because you cited sufficient cases for appeal, there is no legal basis for a mistrial, Mr. [defense counsel].

[THE PROSECUTOR]: Could we do one more case?

THE COURT: I have the jury waiting.

[THE PROSECUTOR]: If they appeal it--

THE COURT: They can't appeal it because the law is to the contrary, legally.

The legal basis, the cases, I have read them, I have read these that you have read plus others, but, however, I will say this:

I think that the attitude--I am not speaking of you individuals, I am talking about the attitude of the State's Attorney's Office, period. I find this is morally reprehensible and in my opinion there is a purposeful discrimination, in my opinion. It's an invidious discrimination. It's a bad policy that they have and I find the State's Attorney's attitude and policies towards removal of Black people from the jury is, to me, is personally offensive not only as a Black person, but as a Black lawyer and a Black judge.

Now, the first panel we selected, the State exercised three challenges, two of whom were Black ladies and the second panel, there were no Blacks in that group, so there was one challenge to one White person a Mr. Finney, and the third panel, there was one Black male and three Whites excluded.

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In my past experience I found this same policy, the same procedures followed.

All right. Your motion is denied.

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[THE PROSECUTOR]: If you say it's purposeful, you have to exclude the jury.

THE COURT: I said it's my opinion, but it's not the law.

On appeal, the State argues that "a prima facie case of racial discrimination could never be established in just one particular case, even if in that case, all Blacks were excluded for the sole reason that they were Black." We flatly rejected this argument in People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982), leave to appeal granted, No. 56907 (Ill.S.Ct. October 5, 1982). In Payne, we held that the State's systematic exclusion of prospective jurors in any given case solely because of their race is invidious and unconstitutional at any stage of the jury selection. We based our decision in Payne on the defendant's right to an impartial jury under the 6th Amendment and upon the roles of the State, the prosecutor and the court itself in a criminal trial.

We believe that the present case truly demonstrates the value and importance of Payne. In this case, a trial judge experienced in conducting voir dire examinations concluded that the State was following the "same policy" and the "same procedures" of "invidious discrimination" that the State has followed in the past when selecting a jury. Although the trial judge found this "morally reprehensible," he felt compelled by the insuperable burden imposed upon a defendant in Swain ¹ and its progeny to deny defendant's motion for a mistrial. Payne unshackles trial judges in these situations and permits them to maintain justice and the appearance of justice in their courtrooms by allowing them to require the prosecutor in such situations to make a showing that he is not systematically excluding Blacks from a jury solely because of their race.

In Payne, we held that in any given case, when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecutor is using peremptory challenges to systematically exclude Blacks from the jury solely because they are Blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that Blacks were not being systematically excluded from the jury solely because they were Blacks. At this stage, the burden of demonstrating that the Constitution was not being violated is upon the prosecutor. If the trial court finds that as to any of the questioned challenges the State has not sustained its burden of demonstrating that it was not excluding Blacks from the jury solely because they were Blacks, the court must then conclude that the jury as constituted at that point fails to comply with the fair cross section requirement of the Constitution, and it must dismiss the jurors thus far selected. Also, it must quash the remaining venire, since the accused is entitled to a random draw from an entire venire, not one that has been partially or totally stripped of a cognizable group by unconstitutional means. Upon such dismissal, a different venire should be drawn, and the jury selection process should begin again. 106 Ill.App.3d at 1040, 62 Ill.Dec. at 748-49, 436 N.E.2d at 1050-51.

Here, after it reasonably appeared to the trial judge, as demonstrated by his observations and statements that appear on the record, that the State was using peremptory challenges to systematically exclude Blacks from the jury solely because they were Blacks, the trial judge should have required the State to demonstrate, by whatever facts and circumstances existed, that Blacks were not being systematically excluded solely because they were Blacks. The failure of the trial court to impose such a requirement on the prosecutor at that stage was error, and the error was of such magnitude that the conviction must be reversed and the case remanded for a new trial. Payne, 106 Ill.App.3d at 1045-46, 62 Ill.Dec. at 752, 436 N.E.2d at 1054; People v. Gosberry, 109 Ill.App.3d 674, 678, 65 Ill.Dec. 99, 103, 440 N.E.2d 954, 958 (1982).

The State argues that because there is no transcript of the attorneys' voir dire examination of the prospective jurors, ² the record is not sufficient to support defendant's argument. However, in making his motion for a mistrial, defense counsel specified for the record the circumstances under which the State used its peremptory challenges, and defense counsel made the jury cards part of the record. In addition, the trial judge had interrogated the prospective jurors, and when he made his express finding that there was purposeful discrimination against Blacks by the State in selecting the jury, he expressly included on the record what had occurred during the jury selection. Under the circumstances, the State's argument is unavailing.

The State next contends that the record is...