People v. Lavinder

• Decision Date: 17 December 1981
• Docket Number: No. 80-1842,80-1842
• Parties: , 58 Ill.Dec. 301 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin LAVINDER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 243

430 N.E.2d 243

102 Ill.App.3d 662, 58 Ill.Dec. 301

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin LAVINDER, Defendant-Appellant.

No. 80-1842.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 17, 1981.

Rehearing Denied Jan. 19, 1982.

Ralph Ruebner, Gordon Berry, Chicago, for defendant-appellant.

Richard M. Daley, Chicago (Marcia B. Orr, Warren A. Zimmerman, Chicago, of counsel), for plaintiff-appellee.

LINN, Justice:

Following a jury trial in the circuit court of Cook County, defendant, Melvin Lavinder, was found guilty of armed robbery and attempted murder (Ill.Rev.Stat.1979, ch. 38, pars. 18-2, 8-4, 9-1). Defendant was sentenced to concurrent prison terms of 25 years for each conviction. A codefendant, Larry Johnson, was found not guilty.

Defendant appeals, contending reversible error occurred in that (1) the prosecution's peremptory challenge of all six black prospective jurors in the venire was constitutionally improper; (2) there was no probable cause for defendant's arrest; and (3) the accumulation of other trial errors, including the prosecutor's asking a question intended to elicit hearsay testimony, and admission of testimony that suggested defendant had committed another crime, denied him a fair trial.

We affirm.

FACTS

The complaining witness, Richard Reges, testified that at about 1:30 a. m. on June 16 Reges got into his car and gave chase. The defendant fired twice more at Reges during the chase. One shot struck the headlight of Reges's car and the other struck the windshield. Glass from the broken windshield lodged in Reges's eye, but did not seriously injure him.

[58 Ill.Dec. 302] 1979, he parked his car across the street from his house in Calumet City, Illinois. As he walked toward his house, the defendant, a black man, ordered him to turn around, pointed a pistol at his chest, and demanded his wallet and change. Reges complied with defendant's demands. Defendant then ran to a car parked down the street, fired a shot at Reges, and jumped into the passenger side of the car, which was driven away by another man.

The auto chase ended at 130th Street near Torrence Avenue, where Chicago police were disbursing a crowd at a drag race. Reges alerted one of the officers in a squad car, pointed to defendant's car in front of him, and told the officer, "Those guys up there just shot me." The police officer got out of his squad car, and as he did so defendant and his companion got out of their car and ran into the crowd. Shortly thereafter, an unidentified spectator at the drag race approached the police officer and told him that the two men he was chasing had got into another car belonging to the spectator's friend. The police officer radioed an alarm, and within a few minutes defendant and his companion were apprehended. They were taken to a nearby police station. At a line-up, Reges identified defendant as his assailant.

The police found a fully cocked revolver in the automobile from which defendant and his companion had run at 130th and Torrence. The revolver contained three live rounds and three spent casings. Defendant's fingerprints were lifted from the left outside mirror of the car. The keys to the car had been found in the back seat of the second car, in which defendant and his companion were arrested. In due course, defendant was charged.

During jury selection, the State exercised peremptory challenges against all six black persons in the group of prospective jurors. The State peremptorily excused only one white prospective juror. Defense counsel moved to strike the entire venire "based on the fact that the two State's Attorneys systematically used their peremptory challenges to excuse all the blacks from the panel." Defense counsel asserted that the State's use of peremptory challenges against all black persons who were prospective jurors was constitutionally impermissible and denied defendant, a black person, a fair jury trial. Defense counsel identified for the record the black prospective jurors who had been peremptorily challenged by the State. After the State's denial that it was engaged in selective and systematic exclusion of blacks, the trial court denied defense counsel's motion to strike the venire. Jury selection was completed, and the trial proceeded.

OPINION

I

Defendant first argues that he was effectively denied his constitutional right to a fair jury trial. Defendant urges that while there is a presumption that in the jury selection procedure the State's peremptory challenges were exercised in a constitutionally permissible manner, the record of the selection process made by defense counsel rebuts that presumption. After the six black prospective jurors in the venire were struck by the State, defense counsel made a motion to strike the venire based on the State's use of peremptory challenges to excuse all the blacks from the panel. He then stated for the record that defendant is black and the victim is white. Counsel named all the blacks excused by the State, claiming they were struck on the sole basis of race. Defendant argues that the burden was thus shifted to the State to demonstrate that the black prospective jurors were not challenged improperly because of "group affiliation." Defendant contends that this burden was not met by the State, which made no showing of its reasons for excusing these prospective jurors, and that consequently his conviction should be reversed.

Defendant's argument is based primarily on a decision of the Supreme Court of California, People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890. Wheeler held that the use of peremptory challenges on the sole ground of group affiliation violated the California state constitutional right to a jury drawn from a representative cross-section of the community. Under Wheeler, where a defendant believes the State is using its peremptory challenges to strike jurors on the ground of group bias alone, he must make out a prima facie case of such discrimination as follows:

"First, * * * he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group * * *. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias."

(22 Cal.3d 258, 280, 583 P.2d 748, 764, 148 Cal.Rptr. 890, 905.) The California court listed as relevant evidence to establish the foregoing the fact that the State peremptorily struck most or all of the members of the group in question (blacks); used a disproportionately large number of peremptory challenges against the group; or asked group members few or no questions during voir dire. Other relevant factors are that the only common characteristic of the challenged jurors was their group membership, that the defendant was a member of the excluded group, and that the victim was a member of the same group as the majority of the jurors.

Under Wheeler, where the defendant makes a prima facie showing of discriminatory use of the peremptory challenge, the burden then shifts to the State to rebut it. If the prosecution fails to rebut the defendant's showing, a new jury must be selected. Because the defendant in Wheeler was convicted by a jury which the court regarded as tainted by the process of its selection, the judgment of conviction was reversed and the case was remanded for a new trial.

Defendant Lavinder asks us to reverse his conviction on the same basis, that is, that he was convicted by a jury which was improperly selected. He points out that in People v. Smith (1980), 91 Ill.App.3d 523, 47 Ill.Dec. 1, 414 N.E.2d 1117, this court discussed Wheeler with approval. In Smith, however, the evidence of purposeful exclusion of jurors was held to be insufficient to warrant reversal, and Smith therefore does not bind us to follow Wheeler. We also note that in People v. Fleming (1980), 91 Ill.App.3d 99, 46 Ill.Dec. 217, 413 N.E.2d 1330, another division of this court expressly refused to adopt the reasoning of the Wheeler opinion.

In Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the United States Supreme Court refused to reverse the conviction of a black petitioner who was tried before an all-white jury, even though the prosecutor had used peremptory challenges to strike all six black prospective jurors on the venire. The court there said 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 * * *." (380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759.) The court went on to define the peremptory challenge and discuss its interaction with a defendant's right to equal protection of the laws:

"The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. * * * It is * * * frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. * * *

(W)e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny...