People v. Seals

• Decision Date: 24 February 1987
• Docket Number: No. 84-3041,84-3041
• Citation: 505 N.E.2d 1107,106 Ill.Dec. 316,153 Ill.App.3d 417
• Parties: , 106 Ill.Dec. 316 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Disby SEALS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1107

505 N.E.2d 1107

153 Ill.App.3d 417, 106 Ill.Dec. 316

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Disby SEALS, Defendant-Appellant.

No. 84-3041.

Appellate Court of Illinois First District, Second Division.

Feb. 24, 1987.

Rehearing Denied March 30, 1987.

James J. Doherty, Public Defender of Cook County (Nicolette Katsivalis and Ronald P. Alwin, Asst. Public Defenders, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., Cook County (Thomas V. Gainer, Jr., Paula M. Carstensen and Kathryn A. Gallanis, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice HARTMAN delivered the opinion of the court:

Defendant appeals his convictions for voluntary manslaughter and aggravated battery and his concurrent sentences of 15 years' imprisonment for manslaughter and 5 years' imprisonment for aggravated battery. He raises as issues whether: (1) the circuit court erred in not finding that the state's use of peremptory challenges improperly excluded black jurors because of their race; (2) the circuit court erred in admitting certain demonstrative evidence; (3) the circuit court erred in refusing to admit into evidence a certified copy of the homicide victim's aggravated battery conviction; (4) defendant's due process rights were violated by improper argument by the prosecutor; (5) the juvenile court abused its discretion by transferring the case for prosecution under the criminal code; and (6) the circuit court abused its discretion by considering improper factors at sentencing.

On November 17, 1983, defendant Disby Seals, then age 14, a member of the Puerto Rican Stones gang, fired five shots from a .45 caliber semi-automatic pistol that killed Ricky Perez, age 19, a member of the Latin Eagles, and wounded Johnny Nieves, age 17, another Latin Eagle. Defendant had been walking with two female friends, Gloria Galvan, age 17, and Kathy Curtis, age 16, near Blaine School when they met three members of the Latin Eagles: Edwin Villariny, age 17, Perez, and Nieves. Nieves told Galvan that she should not wear the sweater she was wearing and Galvan replied she would wear what she pleased. Perez then asked Nieves "who is that punk?" referring to defendant. Two different versions of what happened next were given at trial.

According to Nieves and Villariny, Nieves told Perez that defendant had fired shots at them four weeks earlier. Perez then turned to look at defendant, who drew a pistol from his waistband causing Perez, Villariny and Nieves to start running away. Defendant chased them, shouted "Stone Love," and fired shots which hit Perez and Villariny.

Defendant and his two companions asserted that Nieves, in addition to talking to Galvan, had reached out and tried to grab her sweater and a struggle began. According to defendant, Perez asked defendant what gang he belonged to. After defendant did not reply, Villariny put his hand in the front waistband of his pants as if to pull out a gun and Perez, holding his hands closed and chest high, started towards defendant. Defendant asserts he believed Villariny would shoot him and Perez would hit him. Defendant took one step back, pulled out his gun, and fired five times. According to defendant he did not aim the gun, had never used a gun before, had heard of Nieves and Villariny having guns and believed the three Latin Eagles were going to kill him.

After the shooting, defendant and his companions ran away. He returned the gun to Jose Rivera, leader of the Puerto Rican Stones. Defendant then went to 1137 W. Belmont where he was arrested. Perez, Villariny and Nieves were taken to Illinois Masonic Hospital. Villariny had a bullet removed from his leg which had entered from the back. Villariny also had a bullet bruise to his hip. Perez died at the hospital of massive internal bleeding caused by a bullet that entered through his back and lacerated his lung, bronchus and aorta.

Defendant claimed to have had three previous hostile encounters with Nieves. On the last day of school in June 1982, while walking home with his younger sister he had been punched by Nieves and Villariny when he denied being a gang member. A third Latin Eagle present kicked defendant in the stomach. As defendant and his sister ran away Nieves followed and shouted that he would kill defendant the next time they met. Defendant believed he saw a gun in Nieves' hands. In September 1982, defendant and a friend came across Nieves, who ripped a jacket of his friend and reminded defendant of their past meeting. In October of 1983, Nieves hit another friend of defendant's with a crowbar and took a swing at defendant. Defendant further stated he had been given the gun he used on November 17 earlier that day by Jose Rivera for protection against Latin Eagles.

Defendant was indicted on two counts of attempted murder, one count of murder, and one count of aggravated battery. (Ill.Rev.Stat.1983, ch. 38, pars. 8-4, 9-1, 12-4.) After a hearing, the juvenile court ordered defendant to be tried as an adult. A jury convicted defendant of voluntary manslaughter and aggravated battery on October 26, 1984. The circuit court sentenced defendant as previously noted. Defendant appeals.

I.

Defendant contends that the prosecution improperly used peremptory challenges to disproportionately exclude black jurors from his jury. The United States Supreme Court's recent decision on this subject (Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) supports defendant's theory. The state asserts that the Batson analysis should not be used and, in any case, no purposeful discrimination took place.

Prosecutors may not purposefully discriminate against a racial group in selecting a petit jury in a trial of a defendant belonging to that group. To establish a prima facie discrimination, a defendant must demonstrate that he is a member of a recognizable racial group and that the prosecutor used peremptory challenges to remove members of his race from the jury panel. (Batson, 106 S.Ct. at 1723.) The defendant must then show the relevant facts and circumstances of the case raise an inference of discrimination. After this prima facie case is made the state has the burden of putting forward a neutral explanation for its challenges. The circuit court must then determine whether defendant has proved purposeful discrimination. Batson, 106 S.Ct. at 1723-24.

The state contends Batson should not be applied retroactively, citing the views of four Supreme Court Justices in Batson (106 S.Ct. at 1726, 1731, 1741-42) and an even more recent case barring Batson relief for cases on collateral review. (Allen v. Hardy (1986), 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199.) The Supreme Court has now decided this issue adversely to the state's position in Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. There the Supreme Court retroactively applied Batson to all cases pending on direct review, such as the present case.

The next question to be considered is whether the facts in this case demonstrate a prima facie case of discrimination. In Batson, the prosecutors excluded four black jurors. The resulting jury was all white. (Batson, 106 S.Ct. at 1715.) In the instant case, the record indicates the prosecutors used 10 peremptory challenges to exclude 6 blacks, 1 latino, and 3 whites, one of the blacks being excluded from becoming an alternate juror. Defendant, the child of a racially mixed marriage, was described by the defense as having the appearance of a black. Only one black served on the actual jury that convicted him. Notwithstanding the fact that one black juror did serve, Batson does not require complete exclusion of a racial group to prove discrimination. (See Fleming v. Kemp (11th Cir.1986), 794 F.2d 1478, 1483, pointing out that otherwise prosecutors could allow one or two black jurors to serve to immunize their other challenges.) In pre-Batson decisions, made under state constitutions, several courts found discrimination when one black juror served, even in cases when that juror was jury foreman. State v. Neil (Fla.1984), 457 So.2d 481, 482-83, 487; Commonwealth v. Soares (1979), 377 Mass. 461, 473, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110. See also, United States v. McDaniels (E.D.La.1974), 379 F.Supp. 1243, 1244.

Here, the prosecutors excluded twice as many black jurors as white jurors with the result that only one black juror and one hispanic juror served. The voir dire is preserved and the reasons for exclusion, other than race, are not apparent. This disproportionate use of peremptory challenges establishes a prima facie case of discrimination requiring a neutral explanation by the prosecutors or a new trial. The cause therefore must be remanded to the circuit court for reconsideration of defendant's motion for a mistrial based upon the exclusion of potential minority jurors from the jury.

Because we sustain defendant's conviction and sentencing otherwise, as the following discussion reveals, the cause will be deemed affirmed in the event no systematic exclusion based upon race is found by the circuit court after reconsideration and there is no further review sought here. In the event such impermissible exclusion of potential jurors is found by the circuit court, a mistrial shall be declared and defendant shall be granted a new trial.

II.

Defendant asserts that the circuit court erred in admitting a .45 caliber handgun into evidence because the state failed during discovery to disclose its intent to use the weapon, claiming the prejudicial impact of the weapon outweighed its probative value. The state replies that defendant was not prejudiced by the use of the gun which helped Sergeant Vincent Lamoro testify regarding the casings found at the crime site.

Demonstrative evidence can be used to make other testimony more understandable. (People v. Chatman (1981), 102 Ill.App.3d 692, 701, 58 Ill.Dec. 315,...