People v. Thurmond

• Decision Date: 01 December 2000
• Docket Number: No. 1-99-0924.,1-99-0924.
• Citation: 741 N.E.2d 291,251 Ill.Dec. 697,317 Ill. App.3d 1133
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick THURMOND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

741 N.E.2d 291

317 Ill. App.3d 1133

251 Ill.Dec. 697

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick THURMOND, Defendant-Appellant.

No. 1-99-0924.

Appellate Court of Illinois, First District, Sixth Division.

December 1, 2000.

Michael H. Orenstein, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Renee Goldfarb, Janet Powers Doyle, Theodore R. Eppel, Office of the State's Attorney, Chicago, for Appellee.

Justice BUCKLEY delivered the opinion of the court:

In August 1997, the State charged defendant Derrick Thurmond, with two counts of criminal sexual assault pursuant to section 12-13(a)(3) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-13(a)(3) (West 1998)). In January 1999, a jury found defendant guilty on both counts. The trial court sentenced defendant to two concurrent eight-year prison terms. Defendant appeals, arguing that (1) the State failed to articulate adequate and legitimate race-neutral reasons for peremptorily striking minority venirepersons; (2) the trial court improperly denied defendant probation; (3) the trial court did not properly apply factors of aggravation and mitigation; (4) the trial court waged improper personal attacks on defendant, his religious beliefs, his wife, his defense counsel, and his mitigation witnesses; and (5) the cumulative effect of the judge's sentencing error warrants remand for a new sentencing hearing before a different judge. We affirm.

I. BACKGROUND

In January 1998, defendant filed a motion to suppress genetic evidence, arguing that it was improperly seized. In May 1998, the trial court granted defendant's motion. The State does not appeal that ruling.

In December 1998, the parties made their opening statements and testimony began. The following evidence was adduced at trial. Defendant's wife, Sybil Thurmond, had a niece, A.S., born in August 1981. In 1993, the Illinois Department of Child and Family Services (DCFS) removed A.S. from her mother's care and placed her with Sybil. At that time, defendant and Sybil became A.S.' foster parents. Both A.S. and her younger sister lived with defendant and Sybil.

A.S. testified that, when she was 12 years old, defendant began touching her "in wrong spots." According to A.S., defendant would "raise up [her] gown, rub all of [her] butt cheeks, and kiss [her] too hard." Defendant would wear no pants and would "pull [A.S.'] underwear in the crack of [her] anus area and get on [her] and hump."

A.S. further testified that this touching occurred often, at night, on her bed, and usually while her younger sister slept in the same room. She testified that defendant told her not to fall asleep in her clothes but, rather, to wear a nightgown instead.

In 1996, defendant and Sybil asked A.S. to work at the Christian bookstore the couple owned. A.S. stated that, while working in the bookstore's back room, defendant approached her, pulled her skirt up, pulled her underwear down, and had intercourse with her.

This was not the only bookstore encounter that A.S. reported. She testified that, on another occasion, defendant put her on a couch in the back room and rubbed aloe lotion on her vagina and then inserted his penis inside her. A.S. stated that she felt pain and asked defendant to stop. However, defendant continued, telling her to "relax." According to A.S., defendant subsequently told her that he was sorry and that it would not happen again. However, A.S. testified that defendant continued to have intercourse with her at the bookstore.

In June 1997, defendant reportedly had intercourse with A.S. again. According to A.S., defendant picked her up from school in a van that had a couch in the back. Defendant took A.S. into the back of the van, poured baby oil on A.S.' vagina, and had intercourse with her. She reported that they had intercourse in the van on at least two other occasions.

A.S. also testified that in July 1997, defendant came home from work, entered her bedroom, pulled down his shorts, and had intercourse with her. Defendant did not use a condom and ejaculated on A.S.' T-shirt. The next day, A.S. told Sybil that defendant was having intercourse with her. At Sybil's request, A.S. described defendant's penis and showed Sybil the T-shirt that she wore the previous night.

A.S. testified that she hesitated to tell anyone about defendant's misconduct because she feared that no one would believe her. She also feared that she could become separated from her younger sister. By the time she testified, A.S. estimated that she had sex with defendant approximately 25 times. She also stated that she received "crab lice" from her encounters with defendant.

Mazzie Harris also testified for the State. She testified that she is a DCFS investigator and that DCFS learned of defendant's alleged abuse via its DCFS hotline. Harris stated that she interviewed A.S. and that, as A.S. discussed her case, she appeared embarrassed and nervous. After talking with A.S., Harris notified the police as to defendant's alleged conduct.

Bruce Willand testified that he is a Chicago police department youth investigator. He testified that he began his investigation in August 1997 and that he interviewed A.S. According to Willand, A.S. told him about her encounters with defendant at the bookstore and that she had sex with defendant around 30 times.

In January 1999, a jury found defendant guilty on both counts. The trial court then conducted a sentencing hearing and considered matters relating to aggravation and mitigation. The trial court then rejected defendant's request for probation, finding that defendant committed a crime that was "morally wrong" and that "shocks the conscience." The trial court further held that a sentence of probation would "deprecate the serious nature of the offense in this case." The court sentenced defendant to two concurrent eight-year prison terms. In February 1999, the court denied defendant's motion to reconsider. Defendant then filed the instant appeal.

II. ANALYSIS

A. Batson Claim

Defendant first argues that the State misused its peremptory jury challenges in a racially discriminatory manner. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendant concedes that, while he raised this issue to the trial court during voir dire, he failed to raise it in a posttrial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988),cert. denied, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988) (holding objection and a posttrial motion are generally necessary to preserve an issue for appeal). However, our supreme court, in People v. Mitchell, 152 Ill.2d 274, 285, 178 Ill.Dec. 354, 604 N.E.2d 877 (1992), held that a defendant who objects to the State's use of peremptory challenges but fails to raise a Batson claim in a posttrial motion does not necessarily waive his or her claim on review. See also People v. Whaley, 184 Ill.App.3d 459, 465, 132 Ill.Dec. 681, 540 N.E.2d 421 (1989) (Justice Freeman, writing for the majority, opined that defendants need only make a timely objection during the voir dire to preserve a Batson claim for appeal). Therefore, we proceed to the merits of defendant's Batson claim.

Under Batson, a defendant objecting to the State's use of peremptory challenges must first establish a prima facie case of purposeful discrimination during jury selection by demonstrating that relevant circumstances raise an inference that state exercised peremptory challenges based upon prospective jurors' race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88; People v. Heard, 187 Ill.2d 36, 53, 240 Ill.Dec. 577, 718 N.E.2d 58 (1999). In considering whether a party has established a prima facie case, courts consider: (1) the racial identity between the defendant and the excluded venirepersons; (2) a systematic pattern of strikes against black venirepersons; (3) a disproportionate use of peremptory challenges against black venirepersons; (4) the level of black representation in the venire as compared to the jury; (5) the opponent counsel's questions and statements during voir dire examination and while exercising peremptory challenges; (6) whether the excluded black venirepersons were a heterogeneous group sharing race as their only common characteristic; and (7) the race of the defendant, victim, and witnesses. Heard, 187 Ill.2d at 53-54, 240 Ill.Dec. 577, 718 N.E.2d 58. We will not disturb a trial judge's determination of whether a defendant has demonstrated a prima facie case of discriminatory jury selection unless it is against the manifest weight of the evidence. Heard, 187 Ill.2d at 54, 240 Ill.Dec. 577, 718 N.E.2d 58.

If the defendant establishes a prima facie case, the burden shifts to the State to articulate a race-neutral explanation for challenging the venirepersons in question. If the State provides a race-neutral explanation, the trial judge must consider this explanation and determine whether the complaining party has established purposeful racial discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 87-89; Heard, 187 Ill.2d at 54, 240 Ill.Dec. 577, 718 N.E.2d 58. The trial judge's determination on the ultimate issue of discrimination is entitled to great deference and will not be disturbed unless it is clearly erroneous. Heard, 187 Ill.2d at 54, 240 Ill.Dec. 577, 718 N.E.2d 58.

Defendant specifically points to the State's dismissal of two venirepersons and argues that the State failed to articulate an adequate, nonpretextual, race-neutral reason for dismissing each of them. The first stricken venireperson at issue was Abdul-Rasheed Akbar. The State provided the following reason for exercising a peremptory challenge against Akbar:

"He is a teacher as well as an administrator with the board of education. Likewise, his wife is a teacher. The victim in this case was 15 years of age at the time this happened, approximately the same

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