People v. Powell

• Decision Date: 27 December 1991
• Docket Number: No. 1-87-3896,1-87-3896
• Citation: 224 Ill.App.3d 127,586 N.E.2d 589
• Parties: , 166 Ill.Dec. 631 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert J. POWELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 589

586 N.E.2d 589

224 Ill.App.3d 127, 166 Ill.Dec. 631

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert J. POWELL, Defendant-Appellant.

No. 1-87-3896.

Appellate Court of Illinois First District, Third Division.

Dec. 27, 1991.

[224 Ill.App.3d 128] [166 Ill.Dec. 634] Randolph N. Stone, Public Defender of Cook County, Chicago (Evelyn G. Baniewicz, Asst. Public Defender, of counsel), for defendant-appellant.

[224 Ill.App.3d 129] Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Paul Gliatta and John deGrasse, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice TULLY delivered the opinion of the court:

Defendant, Robert Powell, was charged with burglary and theft. After a jury trial, defendant was found guilty on both charges. Judge Robert Boharic sentenced defendant to 14 years incarceration for burglary and five years for theft, with the sentences to be served concurrently. The judge also imposed a fine of $5,000. Defendant appeals his conviction as well as the sentence and fine.

At appeal, defendant presents five issues: (1) the trial court erred in finding that the State presented neutral reasons for using peremptory challenges to eliminate African-American veniremen; (2) it was reversible error to deny defendant's pretrial motion to suppress evidence seized during the search of defendant; (3) the State failed to prove defendant guilty beyond a reasonable doubt; (4) the sentence of the trial judge was excessive in light of mitigating factors; (5) the trial court erred in imposing a $5,000 fine in view of the defendant's financial resources.

On the morning of March 20, 1987, Cheryl Burton was working as a teacher at John Calhoun Elementary school in Chicago. She testified that around 11:30 a.m., a man entered her classroom in search of a student. She escorted the man to the main office to obtain a visitor's pass. Ernestine O'Neal was working the counter in the office when this man entered. She noticed that the bag he was carrying contained another briefcase which looked similar to one normally carried by Mary Criss, a teacher at the school. Burton and O'Neal later identified the man as Robert Powell.

Earlier that morning Criss had placed her briefcase beneath her desk. She left around 11:15 a.m. for lunch and when she returned at noon her briefcase, containing her paycheck, credit cards, checkbook and other personal items, was missing. Later that day, while exiting a city bus, Criss spotted a man entering the bus with a similar briefcase. Criss identified this man in court as the defendant. The next day police officers called and asked if she knew Robert Powell and she said she did not. When she arrived at the station to claim her briefcase, she did not mention seeing Powell the day before with her briefcase.

On March 21, 1991 Officers Caldbeck and Schmidt were parked in the vicinity of 1459 North Mohawk. Caldbeck testified he saw two African-American males walking eastbound on Blackhawk. One man was apparently carrying a "television" wrapped in a sheet, and the other man, the defendant, was carrying a pillowcase. The officers stopped the two men and identified themselves as police. Caldbeck noticed that the "television" was actually a computer screen wrapped in a sheet. He asked the defendant about the contents of the pillowcase who replied it was "stuff" belonging to his girl friend. After observing a computer keyboard protruding from the case, bearing the same brand name as the screen, Caldbeck searched the other items in the pillowcase. He found identification and other items belonging to Mary Criss, a small brown bag, a tape container, a school bell, and clothing. Defendant said that Mary Criss was his girl friend. The two suspects were detained at the police station to verify their explanations, which were deemed false after the officers contacted Criss.

We first consider the argument that the trial court erred in concluding that the State presented race-neutral reasons for excluding certain African-American members of the venire, and that no purposeful discriminatory intent was evident.

During the voir dire examination of the jurors, the defense moved for a mistrial based upon the systematic exclusion of African-American persons. The defense asserted that the defendant was African-American and that four of the five peremptory challenges used by the State were to remove the remaining African-American individuals in the initial panel of 14. The defense also cited race as the only "common thread" among the jurors excluded. The trial judge concluded that the defense had "possibly" made out a prima facie case of discrimination under Batson, and requested reasons for exclusion from the State. In rebuttal, the State responded with the following explanations:

"With respect to Zidar McClinton * * * she has been giggling since the point any questioning has begun.

[As to] Brenda Porter * * * she indicated that her ex-husband is currently charged with the offense of murder. I think she can have very negative feelings towards the prosecutors, specifically towards the Cook County State's Attorneys Office.

With respect to Lillian Inglam * * * she has a son who is currently unemployed. [H]er husband is currently unemployed. [T]he defendant in this case being unemployed * * * she might harbor * * * bias in his favor. She had six kids. She seemed to be trying to withhold information as to what the children were doing. She would only [discuss] four of the kids.

With respect to Mr. Gross * * * the primary reason * * * he is unemployed * * * his wife is unemployed."

At the close of arguments, the court concluded the State had set forth race-neutral reasons for excluding these veniremen, and further, no discriminatory purpose existed.

In the early and precedential case of Strauder v. West Virginia (1880), 100 U.S. 303, 25 L.Ed. 664, the United States Supreme Court recognized that the Equal Protection Clause guarantees a defendant that the State will not intentionally exclude members of his race from the jury venire. In our time, the Court held that these same equal protection principles apply to a State's use of peremptory challenges in jury selection. (Batson v. Kentucky (1986), 476 U.S. 79, 96, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69, 87.) Batson held that a defendant may make out a prima facie discrimination case totally on evidence concerning the prosecutor's use of peremptory challenges.

To establish a prima facie case under Batson, first defendant must show he is a member of a cognizable racial group and that the prosecutor removed a member of the defendant's race from the venire by peremptory challenge. Second, defendant may rely on the fact that a peremptory challenge allows discrimination by those with a discriminatory view. Finally, defendant must show that the facts, viewed in light of any other pertinent circumstances, raise an inference that a potential juror was excluded because of race. (Batson, 476 U.S. at 95-96, 106 S.Ct. at 1723, 90 L.Ed.2d at 86-87.) In deciding whether the defendant has made the requisite showing, the trial court may view whether there exists a pattern of deletions against members of the defendant's race. (Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.) The prosecutor's questions and comments during voir dire examination may substantiate an inference of discrimination.

Once the lower court finds a prima facie case by the defendant, the burden shifts to the State to provide race-neutral reasons for excluding the prospective jurors. These neutral explanations must be clear, reasonably specific and related to the particular case which the jury will hear. (Batson, 476 U.S. at 98, n. 20, 106 S.Ct. at 1724, 90 L.Ed.2d at 89.) A prosecutor may not merely assert good faith or generally deny a discriminatory motive in selecting jurors. After reviewing the State's explanations the trial court must then make a finding as to whether the State purposefully discriminated in view of relevant circumstances.

A trial court's determination as to intentional discrimination is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence. (Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724, 90 L.Ed.2d at 89.) Because the trial court's finding in a Batson hearing largely turns upon credibility, this finding should be granted great deference on review. People v. Mack (1989), 128 Ill.2d 231, 238, 131 Ill.Dec. 551, 538 N.E.2d 1107; People v. Mahaffey (1989), 128 Ill.2d 388, 413, 132 Ill.Dec. 366, 539 N.E.2d 1172.

Upon the defense showing that four of five challenges had been used to exclude African-Americans, the trial judge found there was "possibly" a prima facie case and then demanded explanations from the prosecutor in rebuttal. As a preliminary matter, we note that a trial court should consider more than mere numbers in evaluating a prima facie case. People v. Young (1989), 128 Ill.2d 1, 19, 131 Ill.Dec. 78, 538 N.E.2d 453.

On appeal, the State does not contend that the trial court erred in finding a prima facie case of discrimination, sufficient to demand race-neutral explanations from the State. The defense posits that the trial court erred in accepting the State's rebuttal explanations as race-neutral and further argues that these reasons were pretextual.

The four excluded jurors stated they would be fair and impartial. Zidar McClinton was excused for giggling. A hesitant, non-serious or casual attitude has been cited as adequate to exercise a peremptory challenge. (People v. Hooper (1989), 133 Ill.2d 469, 509, 142 Ill.Dec. 93, 552 N.E.2d 684; People v. Young (1989), 128 Ill.2d 1, 20, 131 Ill.Dec. 78, 538 N.E.2d 453; People v. Mack (1989), 128 Ill.2d 231, 240, 131 Ill.Dec. 551, 538 N.E.2d 1107.) In Mack, the State excused five African-American jurors based upon attitude. The State's offered reasons included the failure to make eye contact, slowness and an "odd" word...