People v. Mitchell

• Decision Date: 12 May 1992
• Docket Number: No. 1-89-2232,1-89-2232
• Citation: 593 N.E.2d 882,228 Ill.App.3d 917
• Parties: , 171 Ill.Dec. 62 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clifford MITCHELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 882

593 N.E.2d 882

228 Ill.App.3d 917, 171 Ill.Dec. 62

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clifford MITCHELL, Defendant-Appellant.

No. 1-89-2232.

Appellate Court of Illinois,

First District, Second Division.

May 12, 1992.

[228 Ill.App.3d 919] [171 Ill.Dec. 63] Randolph N. Stone, Public Defender of Cook County, Chicago (Stephanie Ellbogen, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Brian Clauss and Barbara Jones, of counsel), for plaintiff-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

A jury convicted defendant of aggravated criminal sexual assault. (Ill.Rev.Stat.1989, ch. 38, par. 12-14(b)(1).) He was sentenced to 12 years in custody of the Department of Corrections. He appeals, raising as issues whether (1) Batson v The State's evidence adduced at trial was as follows. L.M., defendant's nine-year-old niece, testified that she was at home in the family room alone with defendant. She reported that he touched her on the leg. She first denied that he touched her between her legs or having claimed that such an incident took place; however, after further questioning, L.M. admitted telling Dolton Police Detective Richard Janowiak a "different" version. When she spoke to Janowiak she was truthful. She claimed that her mother told her not to tell what really happened.

[171 Ill.Dec. 64] Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson ), and the 1970 Illinois Constitution, prohibit exclusion of jurors based solely on gender; (2) prosecutive allusion to his prior arrest required granting him a mistrial; (3) hearsay statements were properly admitted; and (4) prosecutive closing argument deprived him of a fair trial. We reverse and remand for a new trial for reasons which follow.

On cross-examination, L.M. testified that defendant never touched her between her legs. The assistant state's attorney told her to say defendant touched her; and a Young Women's Christian Association staff member told her to tell the jury that defendant touched her in "a bad place." On redirect examination, she testified that defendant put his finger in her vagina "a little," but on recross examination, when asked whether it was true that defendant "never put his finger in your vagina" she responded, "[u]h huh."

Detective Janowiak testified that he interviewed both L.M. and her mother. Out of the presence of others, L.M. told him that when she was in the family room, defendant came in and sat next to her on the couch, put his hand inside of her pants, and placed his finger inside her vagina.

On the same day, Detective Janowiak testified, he interviewed defendant. He was then already in custody, but not for the subject case. Upon objection, the court struck this answer, and the jury was instructed to disregard the answer. Defense counsel then moved for a mistrial, which was denied. Janowiak further related that, after waiving his Miranda rights, defendant first denied assaulting L.M., but a few minutes later told him that he was in the family room watching television when L.M. walked across the room, and her pants looked baggy. He called her over and, as he pulled her pants up, he inserted his finger in her vagina. The statement was reduced to writing, which defendant signed.

Cook County Assistant State's Attorney (ASA) Colleen Hyland testified that she interviewed L.M.'s mother. Over a defense objection, Hyland related that the mother told her L.M. admitted defendant grabbed her, placed his hand down her pants, and rubbed her back.

ASA Hyland further testified that L.M. told her she was in the living room when defendant grabbed her. L.M. said her pants were baggy and falling down. Defendant put his hands down her pants and put his finger "inside her." She told defendant to stop and he did. Defendant told her not to tell her mother or he would not buy her any more gifts.

The State rested. Thereafter, defense counsel moved for a directed verdict. Upon denial, the defense rested.

The jury found defendant guilty. His post-trial motion for a new trial was denied and he was sentenced as first noted.

I.

Defendant first argues that the State systematically excluded males from the jury in violation of his right to equal protection of the law, relying upon Batson, and the 1970 Illinois Constitution, article I, sec. 2. Although the United States Supreme Court in Batson prohibited the use of peremptory challenges for excluding jurors on the basis of race, as a violation of the fourteenth amendment (Batson, 476 U.S. at 99, 106 S.Ct. at 1724), defendant urges that this prohibition should be extended to gender exclusion as well.

The State asserts Batson should not apply to gender and, even if it does, there is no showing of such discrimination in the present case. The State also maintains Recognition that gender bias has a deleterious effect on impartial jury service is hardly unique. For example, in 1946, the United States Supreme Court held that in states where women were eligible for jury service, federal courts were precluded from intentionally and systematically excluding them from federal jury service, since the United States Judicial Code (28 U.S.C. §§ 411-415) reflected a design to make the jury a cross-section of the community and truly representative; otherwise, "only half of the available population * * * [would be] drawn upon for jury service." (Ballard v. United States (1946), 329 U.S. 187, 191-93, 67 S.Ct. 261, 263-64, 91 L.Ed. 181 (Ballard ).) The Ballard court went on to note, prophetically:

[171 Ill.Dec. 65] that article I, section 2 affords defendant no greater protection than does the United States Constitution.

"The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men--personality, background, economic status--and not [their] sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both * * *." (Emphasis added.) Ballard, 329 U.S. at 193-94, 67 S.Ct. at 264.

Gender classification was given heightened scrutiny for equal protection analyses in Frontiero v. Richardson (1973), 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (Frontiero ). There, discrimination violative of the fifth amendment was found in differential treatment accorded servicewomen, in contrast to servicemen. Four justices agreed that "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subject to close judicial scrutiny." (Emphasis added.) (411 U.S. at 682, 93 S.Ct. at 1768.) The four justices found further that our nation has had a long and unfortunate history of sex discrimination (411 U.S. at 684, 93 S.Ct. at 1769), and went on to observe (411 U.S. at 686, 93 S.Ct. at 1770):

"Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility....' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 [92 S.Ct. 1400, 1406-07, 31 L.Ed.2d 768] (1972). And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society." (Emphasis added.)

In a separate opinion, one justice concurred in the finding of unconstitutional invidious discrimination, and three others separately concurred but declined to expand the list of suspect classifications, particularly because the adoption of the Equal Rights Amendment was then pending. 411 U.S. at 691-92, 93 S.Ct. at 1772-73.

Two years later, the Supreme Court announced that male defendants possessed a constitutional right to an impartial jury and held that Louisiana's constraints upon women serving on juries violated the sixth amendment of the United States Constitution in Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (Taylor ).

Invidious discrimination against males in a different, but important, context was given close attention where a gender classification violated the equal protection clause. Applying a "subject to scrutiny" analysis, the court held that gender classifications must be related substantially to the achievement of important governmental objectives to be acceptable, in Craig v. Boren (1976), 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (Craig ).

The United States Supreme Court has not directly addressed the issue of gender-based challenges to prospective jurors in a fourteenth amendment, Batson setting. Nevertheless, the Batson court clearly expressed concern with protecting identifiable group members who were the historical objects of invidious discrimination and capable of differential treatment, citing Castaneda v. Partida (1977), 430 U.S. 482, 494-95, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (Castaneda ). (476 U.S. at 94, 106 S.Ct. at 1721.) Those who were "a recognizable, distinct class, singled out for different treatment under the laws" came within the definition of an "identifiable group" according to Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280, involving Mexican-American potential jurors. As seen from Ballard, Frontiero,Taylor, Craig, and Castaneda, gender by group has been an historical object of...