People v. Pecor

• Decision Date: 19 November 1992
• Docket Number: No. 72028,72028
• Citation: 153 Ill.2d 109,180 Ill.Dec. 50,606 N.E.2d 1127
• Parties: , 180 Ill.Dec. 50 The PEOPLE of the State of Illinois, Appellant, v. Gregory PECOR, Appellee.
• Court: Illinois Supreme Court

Page 1127

606 N.E.2d 1127

153 Ill.2d 109, 180 Ill.Dec. 50

The PEOPLE of the State of Illinois, Appellant, v. Gregory PECOR, Appellee.

No. 72028.

Supreme Court of Illinois.

Nov. 19, 1992.

Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Michele I. Lavin, Theodore F. Burtzos, Veronica X. Calderon and Randall Roberts, Asst. State's Attys., of counsel), for the People.

Randolph N. Stone and Rita A. Fry, Public Defenders, Chicago (Stephen L. Richards, Asst. Public Defender, of counsel), for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Gregory Pecor, was convicted of murder (Ill.Rev.Stat.1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), residential burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-3), and armed robbery. (Ill.Rev.Stat.1985, ch. 38, par. 18-2(a).) The same jury which convicted defendant found defendant eligible for the death penalty, but could not unanimously agree that there were no mitigating factors sufficient to preclude imposition of the death penalty. (See Ill.Rev.Stat.1985, ch. 38, par. 9-1(g).) The trial court sentenced defendant to life imprisonment without parole on the murder conviction, 30 years' imprisonment for armed robbery, and 15 years' imprisonment for residential burglary. Defendant appealed, and the appellate court reversed and remanded for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. The State appealed to this court (134 Ill.2d R. 315), and we allowed the State's appeal to determine whether defendant's cause should be remanded for a Batson hearing.

During jury selection, the State peremptorily challenged one white venireperson, and then apparently used its next four peremptory challenges to remove black prospective jurors from the jury. At this point, the following colloquy ensued:

"[Defense counsel]: Your Honor, in the exclusions the State has just made, they have executed five of the challenges. The first challenge was a white gentleman who had been in the penitentiary. The last four challenges have been black jurors. We believe that it's been shown at this point by the State the pattern of racial exclusions of the four black jurors, and they have not challenged other jurors who have the same basic backgrounds and characteristics and race in this matter. Pursuant to People versus Bateson [sic ], I believe by these four challenges, there's been a prima facie showing at this point based on the characteristics of the last four challenges as compared to those who have not been challenged, that the only difference here has been a racial difference. The four blacks have been challenged in this matter in sequence have been Joyce Joshawa, a 49 year old male black--

THE COURT: Are you certain of that? Are your certain of that?

[Defense counsel]: By viewing him.

THE COURT: I put him down as white. Do you know something that I don't?

[Defense counsel]: He was a male black. He was the gentleman who was confused.

THE COURT: Carlos Lavington, Chuck Edmonds, and Alberta Collins.

[Defense counsel]: All four were black and all four were challenged by the State, and I believe there's been nothing in their background that would differentiate them other than racial characteristic.

[Assistant State's Attorney]: Your Honor, may I just respond without--Your Honor, if I would just point out for the record--

THE COURT: Well, wait a minute.

[Assistant State's Attorney]: I don't believe they have made a prima facie case; however, we have excused four out of five that would appear to be black on its face. If the Court has no objection, I would like to address the reasons why.

THE COURT: Please do, but let's keep in mind at least from the Court's outward appearance, the defendant is a male Caucasian, is that accurate?

[Defense counsel]: Yes.

THE COURT: Is the victim allegedly a Caucasian?

[Defense counsel]: That's correct.

THE COURT: Go ahead.

[Assistant State's Attorney]: Your Honor, I would point out there is no race identification with the defendant. It's a white on white crime. I don't believe that Bateson [sic ] applies, and I would ask the individuals, the record reflects, we have only excused one white juror, four blacks. The white juror, the only juror that's identifiable with the defendant. Therefore, I do not believe there is a race issue here.

THE COURT: Well, the Court, first of all, has serious, serious questions whether Bateson [sic ] applies at all since the subsequent decisions have come down have in similar cases have ever refused to say Bateson [sic ] applies. Here I have a Caucasian defendant, and an alleged victim who was Caucasian, and I have the State having exercised four challenges of black individuals, and there is nothing in the world that this Court in this case, if Bateson [sic] applies, which I seriously question that even smacks remotely the [sic ] exclusion of those individuals for racial reasons in this case, and accordingly I find that the defense has failed to make a prima facie case under Bateson [sic ]."

The next day, before jury selection continued, the court announced the following:

"I would further like to place of record that yesterday in ruling on a Batteson [sic ] motion filed by the defense, I made note of the fact that the Supreme Court of Illinois had decided cases subsequent to Batteson V Kentucky [sic ] and holding that a Batteson [sic ] motion does not apply where there is a caucasian defendant. The name of the case escaped me. I'll now cite it. People versus Holland, H-o-l-l-a-n-d, cited by the Illinois Supreme Court, Docket 64182, December 21, '87, holding that in fact a caucasian defendant has no standing to assert a Batteson [sic ] violation where the defense claims that the State exercises peremptory challenge [sic ] to exclude black prospective jurors."

Defense counsel did not renew any Batson claim, nor did counsel make a record of the racial composition of the venire, the race of any persons subsequently excluded from the venire, or the racial composition of the petit jury. Defense counsel did, however, include in his post-trial motion the argument that the trial court "improperly denied * * * [defendant's motion] for a mistrial based upon the prosecution using their peremptory challenges to exclude black people from serving on [defendant's] jury."

Defendant appealed to the appellate court. After defendant filed his brief with the appellate court, the State filed its initial appellee brief, which, according to defendant's supreme court brief, failed to include the argument that defendant's Batson claim had been waived because defendant failed to adequately preserve the record for review. Defendant's brief also asserts that the State later included this argument in a supplemental brief filed four days before oral argument. After oral argument, defendant replied to the State's supplemental brief in a letter to the appellate court.

Shortly after oral arguments to the appellate court in this case, the United States Supreme Court issued its opinion in Powers v. Ohio (1991), 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411. The Powers decision held 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." (Powers, 499 U.S. at ---, 111 S.Ct. at 1365, 113 L.Ed.2d at 419.) The appellate court, relying on Powers, reversed and remanded for a Batson hearing. (1991), 213 Ill.App.3d 472, 157 Ill.Dec. 600, 572 N.E.2d 1064.

I

On appeal to this court, the State argues that defendant should not be given a second chance to prove his Batson claim because defendant failed to preserve the record for review, such a remand would be impractical, and because the trial court correctly found that defendant had not established a prima facie case under Batson. Defendant cross-appeals and argues that the appellate court should have remanded for a new trial, not simply a Batson hearing. We affirm the appellate court's decision.

The State first argues that defendant failed to fully preserve the record for review. Defendant, however, argues that the State has waived this claim for review by failing to present it at all to the trial court, and to the appellate court in its initial brief. Defendant first argues that issues not raised in the trial court are considered waived upon appeal, and that the principle of waiver applies equally to the State as to defendant in a criminal trial (People v. O'Neal (1984), 104 Ill.2d 399, 407, 84 Ill.Dec. 481, 472 N.E.2d 441), even when the State has prevailed in the trial court (People v. Adams (1989), 131 Ill.2d 387, 395-96, 137 Ill.Dec. 616, 546 N.E.2d 561). Defendant further notes that a specific objection in the trial court waives all other grounds not specified. (O'Neal, 104 Ill.2d at 407, 84 Ill.Dec. 481, 472 N.E.2d 441.) Defendant then argues that at trial and at the hearing on the motion for a new trial, the State's only specific objection to the Batson motion was that defendant had no standing.

As the State notes, however, this court has held in similar circumstances that "[t]he State would have absolutely no reason to object to the lack of a record when defendant moved for a mistrial or at any post-trial proceedings where the trial judge presiding over the trial, who has seen the venire-persons and jury with his own eyes, is ruling on the Batson issue." (People v. Andrews (1989), 132 Ill.2d 451, 459, 139 Ill.Dec. 469, 548 N.E.2d 1025.) In such a situation, the State may preserve the issue by arguing the issue on appeal to the appellate court. (Andrews, 132 Ill.2d at 459, 139 Ill.Dec. 469, 548 N.E.2d 1025.) Defendant's claim here must fail.

Defendant also argues, however, that the State has waived this issue because it failed to include the issue...