People v. Lann

• Decision Date: 19 April 1994
• Docket Number: No. 1-90-2966,1-90-2966
• Citation: 261 Ill.App.3d 456,633 N.E.2d 938
• Parties: , 199 Ill.Dec. 142 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frankie LANN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 938

633 N.E.2d 938

261 Ill.App.3d 456, 199 Ill.Dec. 142

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frankie LANN, Defendant-Appellant.

No. 1-90-2966.

Appellate Court of Illinois,

First District, Second Division.

April 19, 1994.

Michael J. Pelletier, Deputy Defender, Chicago (Nan Ellen Foley, Asst. Appellate Defender, of counsel), for appellant.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, Barbara Jones, Asst. State's Attys., of counsel), for appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant Frankie Lann was convicted by a jury on charges of armed robbery, kidnapping, aggravated kidnapping, and aggravated battery arising out of events occurring on May 25, 1983, and was sentenced to 13 years' imprisonment. On a prior appeal, we affirmed defendant's convictions and sentence, but remanded the case for a Batson hearing to determine if the State improperly used its peremptory challenges to exclude African-Americans from the jury. People v. Lann (1990), 194 Ill.App.3d 623, 141 Ill.Dec. 283, 551 N.E.2d 276, appeal denied, (1990), 132 Ill.2d 550, 144 Ill.Dec. 262, 555 N.E.2d 381.

The following facts were adduced at the Batson hearing before Circuit Judge John M. Mannion. ¹ Defendant and the victim were both African-Americans, as was at least one of the two witnesses called by the State against him. In using seven of its 10 peremptory challenges, six of the seven potential jurors excused by the State were African-Americans. The petit jury, including one alternate, consisted of eight white men, two white women, one African-American man, and two African-American women. The jury cards, which were admitted into evidence, establish that but for the following three similar characteristics, the potential jurors excluded by the State were a heterogeneous group: (1) as already noted, six of the seven were African-Americans; (2) six of the seven were women; and (3) all seven were unmarried. ² One of the arguments made by the prosecutor at the Batson hearing in opposition to defendant's racial discrimination claim and in justification of the State's claim as to the heterogeneity of the group was that five of the six of the excluded African-Americans were women.

Judge Mannion held that defendant had not made out a prima facie case of racial discrimination under Batson, basing his decision on the following factors: (1) the percentage of African-Americans on the petit jury was almost identical to the percentage of African-Americans in Cook County; (2) the State used only seven of its 10 peremptory challenges; (3) the State did not challenge three African-American venire members who ultimately formed one-fourth of the petit jury; (4) the State had in mind the type of juror that it was looking for; and (5) the judge had presided over several cases where the assistant State's Attorney in question was the prosecutor and, to his knowledge, the prosecutor had never even been accused of systematically excluding African-Americans.

Defendant appeals Judge Mannion's determination that he did not make out a prima facie case of racial discrimination under Batson. He also alleges for the first time that the State violated Batson during his trial because it improperly used its peremptory challenges to exclude women from the petit jury, conceding that he did not object to the prosecutor's alleged gender discrimination during voir dire, in his post-trial motion, or in the original appeal of his conviction, nor during the Batson hearing after we remanded the case for that purpose.

I.

A.

Prior to the United States Supreme Court's decision in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 a defendant was entitled to a reversal of his conviction in a case where the prosecutor had practiced purposeful racial discrimination in the selection of jurors only by establishing the State's systematic and intentional pattern of excluding venire members on the ground of race in "case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." (Swain v. Alabama (1965), 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 774.) Batson, however, expressly overruled Swain and held that a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury based solely on the prosecutor's exercise of peremptory challenges at the defendant's trial. ( Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87.) In Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, the Supreme Court declared that the rule in Batson applies to all cases which were pending on direct review at the time that it handed down its Batson decision. This is such a case.

Batson established a two-step procedure for resolving defendant's claim that the prosecution used its peremptory challenges in a racially discriminatory manner. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of his jury, and if he or she succeeds in making such a case, the burden then shifts to the State to come forward with a race-neutral explanation for challenging each of the venirepersons. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

In order to establish a prima facie case of discriminatory jury selection under Batson, a defendant initially had to show that he was a member of a cognizable racial group and that the prosecutor had exercised his peremptory challenges to remove members of the defendant's race from the venire panel. (Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87.) Subsequently, however, the United States Supreme Court, held in Powers v. Ohio (1991), 499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411, 419, that "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." In order to make a prima facie showing of discrimination after Powers, the defendant is required to raise only an inference that the prosecutor exercised peremptory challenges to remove venire members based upon race. (People v. Andrews (1992), 146 Ill.2d 413, 424, 167 Ill.Dec. 996, 1003, 588 N.E.2d 1126, 1133.) In doing so, 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' " (Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87, quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244, 1247-48.) The defendant must show that this fact and any other relevant circumstances raise an inference that the prosecutor peremptorily challenged venirepersons on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

Although the United States Supreme Court has not provided an exhaustive list of factors that a trial court should consider in deciding whether a defendant has made out a prima facie case of racial discrimination, the Illinois Supreme Court has consistently identified the following indicia as "relevant circumstances" which trial courts should consider in making the prima facie determination: (1) a pattern of strikes against African-American jurors; (2) the prosecutor's questions and statements made during voir dire examination and in exercising his challenges; (3) the disproportionate use of peremptory challenges against African-Americans; (4) the level of African-American representation in the venire as compared to the jury; (5) whether the excluded African-Americans were a heterogeneous group sharing race as their only common characteristic; and (6) the race of the defendant, the victim and the witnesses. People v. Coleman (1993), 155 Ill.2d 507, 514, 187 Ill.Dec. 479, 483, 617 N.E.2d 1200, 1204; People v. Pecor (1992), 153 Ill.2d 109, 127, 180 Ill.Dec. 50, 58, 606 N.E.2d 1127, 1135; Andrews, 146 Ill.2d at 426, 167 Ill.Dec. at 1004, 588 N.E.2d at 1134; People v. Henderson (1990), 142 Ill.2d 258, 287-88, 154 Ill.Dec. 785, 799-800, 568 N.E.2d 1234, 1248-49; People v. Hooper (1989), 133 Ill.2d 469, 508, 142 Ill.Dec. 93, 110-111, 552 N.E.2d 684, 701-02; People v. Mahaffey (1989), 128 Ill.2d 388, 412, 132 Ill.Dec. 366, 378, 539 N.E.2d 1172, 1184; People v. Evans (1988), 125 Ill.2d 50, 63-64, 125 Ill.Dec. 790, 795, 530 N.E.2d 1360, 1365.

Other factors occasionally identified by the supreme court as relevant to a prima facie Batson case are: (1) the trial court's knowledge of local conditions and local prosecutors (Andrews, 146 Ill.2d at 435, 167 Ill.Dec. at 1004, 588 N.E.2d at 1134; Evans, 125 Ill.2d at 67, 125 Ill.Dec. at 796-97, 530 N.E.2d at 1366-67); (2) whether the prosecutor used all of his peremptory challenges (Hooper, 133 Ill.2d at 508, 142 Ill.Dec. at 110-111, 552 N.E.2d at 701-02; accord People v. Knott (1991), 224 Ill.App.3d 236, 251, 166 Ill.Dec. 521, 532, 586 N.E.2d 479, 490, appeal granted, (1992), 145 Ill.2d 640, 173 Ill.Dec. 10, 596 N.E.2d 634, vacated as moot, (1993), --- Ill.2d ----, 190 Ill.Dec. 439, 621 N.E.2d 611); and (3) whether the victim and the stricken venirepersons were of the same race. (Andrews, 146 Ill.2d at 425, 167 Ill.Dec. at 797, 588 N.E.2d at 1137.) Additionally, although the supreme court has warned that "mere numbers" do not establish a prima facie case (Henderson, 142 Ill.2d at 258, 154 Ill.Dec. at 799, 568 N.E.2d at 1248; Mahaffey, 128 Ill.2d at 414, 132 Ill.Dec. at 378, 539 N.E.2d at 1184), "the exclusion of even just one minority venireperson on account of race is unconstitutional and * * * require[s] reversal of the conviction below." (Andrews, 146 Ill.2d at 434, 167 Ill.Dec. at 1008, 588 N.E.2d at 1138; People v. Harris (1989) 129 Ill.2d 123, 175, 135 Ill.Dec. 861, 884, 544 N.E.2d 357, 380.) Finally, this court reviews a trial court's determination as to whether a...