People v. Martinez
Annotate this Case
THIRD DIVISION
June 10, 1998
No. 1--96--3090
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ROBERT MARTINEZ, ) Honorable
) Fred G. Suria,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a jury trial, defendant Robert Martinez was found
guilty of first degree murder and sentenced to 20 years'
imprisonment. On appeal, defendant contends that the circuit court
erroneously determined that defendant failed to make a prima facie
case of racial discrimination during jury selection. For the
reasons set forth below, we affirm.
On October 3, 1994, Fillamon Ibarra-Saucedo was shot to death
at the LaAlondra tavern located at 2010 West 18th Street in
Chicago, and defendant was subsequently charged with first degree
murder of Ibarra-Saucedo. At trial, the court conducted a voir
dire examination of two panels of venirepersons. Among the persons
interviewed in the first panel were Patricia Brown, Valerie Perkins
and Gregory Bonestro. Brown was a single black woman who lived
with her three children and one grandchild. Brown did not work
outside of the home. Perkins was a single black woman who lived
alone in a home where she had resided for 17 years. Perkins had
been a registered nurse since 1976 and had worked at her current
job for 11 years. Bonestro, whose race was not indicated in the
record, was employed and lived in an apartment with his wife and
children.
The trial court excluded four venirepersons for cause from the
first panel with no objections from either the State or defendant's
counsel. The State, however, challenged Brown, Perkins and
Bonestro with three of its seven peremptory challenges. Defendant
challenged two venirepersons and made a Batson motion with regard
to the State's challenges to Brown, Perkins and Bonestro.
Thereafter, the following discussion ensued:
"MR. PALMER [defendant's counsel]: Based
on my review of the cards, it appears there is
really nothing to separate the three
individuals from the remainder of the panel
with regard to Miss Brown, forty-three,
single, three kids. Although she doesn't own
a home, she rents. She lived in the same
place eleven years.
Miss Perkins is forty-five, divorced,
three adult kids. She is an educated person
as is the majority of this panel. She is a
nurse, which I believe at least one other
person that has been accepted by the State.
She is a crime victim as many of the panel
that is accepted by the State. She also owns
a home. She has lived in her same address for
seventeen years.
***
Judge, it's our contention that there's
nothing separating and distinguishing these
*** individuals other than their race, and I
believe that at this time we've met our
burden, and we'd ask for--
THE COURT: State?
MR. NOONAN [Assistant State's Attorney]:
I don't believe that is a prima facie burden.
THE COURT: Yes.
***
THE COURT: *** I'll address all the
questions where there's a systematic excuse of
person of the same race, am I correct, or
creed or color as the defendant. Two of the
ladies, Miss Brown and Miss Perkins are both
black or African Americans.
MR. PALMER: For the record, they are the
only two African Americans or black persons in
this panel.
THE COURT: That's correct.
It's my understanding the Defense would
not, would not have the standing to object, am
I correct?"
Defendant's counsel responded that he did not believe that was
correct, but that he believed "there was a case," the name of which
he could not remember, where a white defendant made the same
argument regarding exclusion of blacks. The State responded that
there was a U.S. Supreme Court case regarding a white defendant who
"complained about the exclusion of blacks, and that was not found
to be a valid reason by the U.S. Supreme Court." The State claimed
that it believed that the case "came back" for other reasons than
the fact that the defendant did not have standing because he was
white, and that "the inquiry goes more to the jurors themselves,
not the race of the defendant." The trial court agreed, and found
that there was "no systematic exclusion of anyone" in this case.
However, the trial court asked the State to explain the reasons for
its challenges "so the record [will be] complete two years later if
someone else upstairs disagrees."
The State responded that it excluded Brown because she "sat in
the court with sunglasses on for quite awhile," she did not work,
her answers were practically inaudible, and she was single with
three children and a grandchild. Perkins was also single with
three children, she sat in the jury box with her arms folded during
questioning of the other venirepersons, and, in the State's
opinion, "presented a very defiant attitude" when questioned by the
court. Bonestro had four prior drug arrests.
Regarding Brown, defendant's counsel countered that the sun
was shining through the windows[fn1] and that Brown did remove her
sunglasses when she was being questioned. He further claimed that
the fact Brown was single and had children was not a valid reason
to have Brown removed from the jury. He also argued that Perkins,
whose children were all adults, exhibited a "substantial stability"
in living on her own for 17 years, and holding a job for 11 years
while being a single parent. Lastly, defendant's counsel argued
that the fact that Bonestro had been arrested was not "sufficient
to exclude him." Accordingly, he argued that the State failed to
show sufficient race-neutral reasons for the exclusion of Brown,
Perkins and Bonestro, and requested that the court deny the
exclusions. The State responded:
"Just so the record is clear, if your Honor has
not found a prima facie case, we don't have to
offer any race neutral reasons, and your Honor
just asked me as an aside for those reasons,
which is what I did."
In response, the court stated, "I would agree. I would find there
is no systematic exclusion. I'll note your exception."
Five members of the panel were then selected as jurors:
Thomas Boecher, who had lived in a home for 12 years with his wife,
and had been a concrete truck driver for approximately 10 years;
Paul Heckman, who worked outside his home as an actuary and lived
in a condominium with his wife; Albert Janulis, who was a retired
senior management systems specialist and had lived in a home for 36
years with his wife; Linda Salinas, a schoolteacher, who had lived
in her home for 2« years with her employed husband and two
children; and Kathryn Zerate, a registered nurse, who had lived in
her home for 16 years with her employed husband and family.[fn2]
The trial court then called a second panel and continued voir
dire. After the court finished questioning the individual
venirepersons, it excused one for cause with no objections from the
State or defendant's counsel. The State utilized two of its
peremptory challenges against single women whose races also are not
indicated in the record. Seven members of the second panel, whose
races are also not indicated in the record, were selected as
jurors. Of these seven jurors, four were married and two were
single. The seventh juror's marital status is not indicated in the
record, but he claimed that he had resided in a home with his
parents for the past 21 years.
After the conclusion of defendant's trial, defendant was
convicted of first degree murder and sentenced to 20 years'
imprisonment. This appeal followed.
Defendant contends that the trial court erroneously determined
that he failed to establish a prima facie case of systematic
exclusion of venirepersons based on race because there was a
pattern of strikes by the State against African-American
venirepersons and because the excluded African-American
venirepersons were a heterogenous group which shared race as their
only common characteristic. The State contends that the trial
court properly determined that defendant failed to establish a
prima facie case of discrimination and, assuming arguendo that
defendant did establish a prima facie showing, the record clearly
indicates that the State overcame that showing by offering neutral
explanations for exclusion of the venirepersons other than their
race.
In Batson v. Kentucky, 476 U.S. 79, 86, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Supreme Court held that "purposeful racial
discrimination in selection of the venire violates a defendant's
right to equal protection because it denies him the protection that
a trial by jury is intended to secure." Batson provides a three-
step process for the evaluation of race discrimination claims in
jury selection. People v. Munson, 171 Ill. 2d 158, 174, 662 N.E.2d 1265 (1996). An objecting defendant must first make a prima facie
showing that the State has exercised peremptory challenges on the
basis of race. If the defendant makes such a showing, then the
burden shifts to the prosecution to articulate a race-neutral
explanation for excluding the venireperson in question. The trial
court then determines whether the defendant has met his burden of
proving purposeful discrimination. Munson, 171 Ill. 2d at 174.
The trial court must next consider the State's proffered rationale
for exercising its peremptory challenges and decide whether the
reasons are merely pretextual and whether purposeful discrimination
has taken place. People v. Benson, 266 Ill. App. 3d 994, 998, 641 N.E.2d 617 (1994).
A prima facie showing of discrimination under Batson requires
that a defendant demonstrate that "relevant circumstances" in the
case raise an inference that the prosecutor exercised peremptory
challenges to exclude potential jurors from the jury on account of
their ethnicity. People v. Hudson, 157 Ill. 2d 401, 425-26, 626 N.E.2d 161 (1993). The "relevant circumstances" necessary to
establish a prima facie case include: (1) a pattern of strikes
against minority venirepersons; (2) a disproportionate use of
peremptory strikes against minority venirepersons; (3) the level of
minority representation in the venire as compared to the jury; (4)
the prosecutor's questions and statements during voir dire and
while exercising peremptory challenges; (5) whether the excluded
minority venirepersons were a heterogeneous group sharing race as
their only common characteristic; and (6) the race of the
defendant, victim and witnesses. Hudson, 157 Ill. 2d at 425-26.
A trial court's decision as to whether a defendant has established
a prima facie case of purposeful discrimination against black
venirepersons will not be overturned unless it is against the
manifest weight of the evidence. People v. Henderson, 142 Ill. 2d 258, 287, 568 N.E.2d 1234 (1990).
Defendant's primary argument in the case at bar is that he
established a prima facie case of purposeful discrimination based
on the State's use of peremptory strikes against two venirepersons.
Defendant contends that because the trial court asked the State to
provide reasons for excluding venirepersons, without first making
a determination that defendant had met his burden of establishing
a prima facie case of discrimination, this court need only rule on
whether defendant in fact established a prima facie showing of
discrimination. Defendant argues at length that he sufficiently
demonstrated two of the six Hudson factors necessary to establish
a prima facie case of discrimination: (1) a pattern of peremptory
strikes by the State against African-Americans because the State
challenged 100% of the African-Americans in the first panel; and
(2) the excluded venirepersons were heterogeneous based on
defendant's comparisons to them and the selected venirepersons.
The State argues that defendant failed to cite to any
authority holding that a pattern of peremptory strikes is
demonstrated whenever the State strikes all of the representatives
of a particular racial group. The State further argues that Brown
and Perkins were not a heterogeneous group because they shared
characteristics other than race, including a disrespectful attitude
toward the court. The State therefore contends that the trial
court properly determined that defendant failed to meet his prima
facie burden of establishing purposeful discrimination.
In Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), which neither party cites to, the
Supreme Court held that the preliminary issue of whether the
defendant has made a prima facie case of purposeful discrimination
becomes moot where the trial court fails to determine whether a
prima facie showing has been made, the State offers an explanation
for the peremptory challenge without any prompting from the trial
court, and the trial court rules on the ultimate question of
intentional discrimination. Hudson, 157 Ill. 2d at 427. In
Hudson, another case which neither party cites to, the State
attempted to argue that the issue of a prima facie showing of
discrimination did not become moot because, unlike the trial court
in Hernandez, the trial court in Hudson specifically prompted the
State to offer explanations for its peremptory challenges.
Applying Hernandez, our supreme court in Hudson disagreed with the
State and held that the prima facie issue becomes moot after the
trial court finds neutrality in the State's explanations for its
exclusions of venirepersons regardless of whether the State had or
had not been prompted by the trial court to provide explanations.
Hudson, 157 Ill. 2d at 427-28. See also, People v. Mitchell, 152 Ill. 2d 274, 604 N.E.2d 877 (1992).
Our courts have repeatedly stated that after determining that
the issue of whether a defendant made a prima facie case was moot
because the trial court ruled on the ultimate question of
purposeful discrimination by finding that the State's explanations
were valid, a reviewing court then turns to the next step of the
Batson analysis and considers whether the State presented race-
neutral reasons for the exclusion of black venirepersons. People
v. Thomas, 266 Ill. App. 3d 914, 920, 641 N.E.2d 687 (1994). In
Thomas, after the defendant moved for mistrial under Batson, the
trial court held that the defendant failed to establish a prima
facie case of discrimination. However, the trial court nonetheless
required the State to provide reasons for its exclusions because
the court "believe[d] that there would be certain panels under the
Illinois Appellate Court First District that would substitute [the
trial court's] opinion." Thomas, 266 Ill. App. 3d at 918. See
also, People v. Davis, 287 Ill. App. 3d 46, 52, 677 N.E.2d 1340
(1997) (after determining that the prima facie case issue was moot,
the court held that it "need only address the ultimate issue of
whether there was intentional discrimination"); and Hudson, 157 Ill. 2d at 428 (after determining that the prima facie case issue
was moot, the court held that "we need only review the trial
court's ruling that the State's proffered reasons *** were race-
neutral"). We also note that People v. Walls, 220 Ill. App. 3d
564, 581 N.E.2d 264 (1991), a case that defendant cites to in his
brief, specifically held that even if the trial court did err in
that case in deciding the preliminary question of whether a prima
facie showing of discrimination had been made, that issue need not
be considered on review because the trial court heard the State's
reasons and ruled on the issue of discrimination. Walls, 220 Ill.
App. 3d at 573.
In the present case, like Hernandez and Hudson, the issue of
whether defendant established a prima facie case of discrimination
is moot because the trial court prompted the State to present its
reasons for exercising its challenges against the venirepersons.
And as in Thomas, the trial court here, contrary to defendant's
argument, first found that defendant failed to establish a prima
facie case before requesting reasons from the State for its
exclusions in case "someone else upstairs disagrees." Because the
trial court found "no systematic exclusion" after hearing the
State's proffered reasons, we hold that the initial prima facie
issue in the Batson analysis is moot. Because the issue is moot,
we need not discuss defendant's argument that two of the Hudson
factors necessary in establishing a prima facie case exist in this
case, nor the State's lengthy counter-argument on the same issue.
We briefly note that defendant's reliance on People v.
Jackson, 145 Ill. 2d 43, 582 N.E.2d 125 (1991), in support of his
argument that, because the trial court requested that the State
provide reasons for excluding Brown and Perkins without first
making the determination that defendant met its burden of
establishing a prima facie case of discrimination, this court is
therefore "only ruling on whether there was indeed a prima facie
showing of discrimination," is misplaced. We first observe, as
discussed above, that the trial court found that defendant failed
to establish a prima facie case before the State informed the court
of its reasons for its exclusion of venirepersons. Moreover,
defendant merely cites to Jackson; he fails to provide any specific
reasoning or argument as to how Jackson is applicable to the case
at bar. When an appellant seeks reversal, theories which are not
pursued or advanced with citation to relevant authority are deemed
waived. People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 179
(1994). Defendant has thus waived this argument.
Notwithstanding defendant's waiver, Jackson clearly does not
stand for the proposition that a reviewing court may only rule on
whether a defendant established a prima facie case of
discrimination where a trial court asked the State to provide race-
neutral reasons for exclusion of venirepersons without first
determining that the defendant had met its burden. In Jackson,
when the State exercised a peremptory challenge against a black
juror, the trial court, on its own initiative, required the State
to provide reasons for excusing the juror notwithstanding that the
defendant had neither raised a Batson issue nor attempted to
establish a prima facie case of discrimination. While the Jackson
court cautioned trial courts against procedures whereby "the first
step in the Batson analysis is omitted altogether," it never
specifically held that it was limited on review to the sole
question of whether a prima facie case had been established.
(Emphasis added.) Jackson, 145 Ill. 2d at 98. Additionally,
Jackson is distinguishable from the present case; as discussed
above, unlike defendant here, the Jackson defendant never raised a
Batson issue, nor attempted to establish a prima facie case of
discrimination before the State offered its reasons for exclusion
of venirepersons. Jackson, 145 Ill. 2d at 96.
We next address the issue of whether the State's proffered
reasons for its exclusions of venirepersons were race-neutral.
Because defendant, as previously discussed, argues that the only
relevant issue on appeal is this court's determination of whether
a prima facie case had been established, defendant did not directly
address the issue of whether the State's proffered reasons were
race-neutral. However, because the two issues involve a somewhat
similar analysis and consideration on review, defendant's argument
regarding the prima facie issue will be discussed in relation to
the analysis of whether the State's proffered reasons for exclusion
were race-neutral.
Defendant contends that there was a pattern of strikes against
African-Americans because in challenging Brown and Perkins, the
State effectively challenged 100% of the potential African-American
venirepersons.[fn3] Defendant argues that the State's articulated
marital status for exclusion of Brown and Perkins was "a basis that
strongly suggests illicit motives." Defendant cites to Walls in
support of his proposition that "this court has frowned upon the
use of a woman's status as an unmarried woman as a basis for
excluding jurors." Defendant asserts that "[e]ven if arguendo,
being an unmarried mother demonstrates traits that would not make
that individual an unbiased juror, with statistics showing that 50%
of marriages end in divorce, extending that stigma to divorced
individuals is unacceptable." Defendant also argues that the fact
that Brown wore sunglasses while sitting in the jury box until she
was questioned, even though it was obvious she was shielding her
eyes from the sun, and the fact that Perkins kept her arms folded,
are "simply not credible reasons to exclude jurors."
The State contends that its reasons for excluding Brown--
because she sat in the jury box with sunglasses on, she did not
work, her answers were almost inaudible, and she was single with
three children and a grandchild--were clearly race-neutral. The
State argues that, although defendant noted that the sun was
shining in the courtroom, the trial court nonetheless had the
opportunity to observe Brown's demeanor and to assess the
legitimacy of the explanation offered by the State for her
exclusion. The State claims that its reasons for excluding
Perkins--because she was single, had three children, and the
prosecutor believed that she presented a defiant attitude when she
was questioned by the court and during questioning of the other
venirepersons--were also race-neutral reasons.
The State further argues that the prosecutor never stated that
Brown and Perkins were challenged because they were unmarried
mothers. According to the State, the factor that distinguished
both Brown and Perkins was their disrespect toward the court and
not their status as unmarried mothers. The State also maintains
that all of the women excluded by the State were unmarried. The
State further argues that defendant's reliance on Walls is
misplaced because the court in Walls determined that the
prosecutor's reason for striking a potential juror because of her
parental status and the proximity in age between the potential
juror's children and defendant were pretextual based on its
observation that there were several other jurors who were accepted
by the State despite the fact that they were parents of children
who were approximately the same age as the defendants. (Emphasis
added.) Walls, 220 Ill. App. 3d at 574. Therefore, the State
maintains that the Walls holding is inapplicable to this case
because the excluded juror's marital status was not even considered
by the Walls court.
It is well settled that the second step in the Batson analysis
does not demand an explanation by the State that is persuasive or
even plausible. The issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reasons offered will
be deemed race-neutral. People v. Figgs, 274 Ill. App. 3d 735,
739-40, 654 N.E.2d 555 (1995). A neutral explanation is an
explanation based on something other than the race of the
venireperson. Benson, 266 Ill. App. 3d at 998.
The exclusion of even one prospective juror based on race is
unconstitutional and requires reversal of a conviction. People v.
Britt, 265 Ill. App. 3d 129, 133, 638 N.E.2d 282 (1994). A
reviewing court should not overturn a trial court's finding on the
issue of discriminatory intent in the prosecution's use of
preemptory challenges unless it is convinced that the trial court's
determination was clearly erroneous. People v. Champs, 273 Ill.
App. 3d 502, 506, 652 N.E.2d 1184 (1985). Because the trial
court's finding regarding discriminatory intent is a matter of fact
and a question of credibility, the trial court's findings are
afforded a great deal of deference on review. Munson, 171 Ill. 2d
at 174. See also, People v. Mahaffey, 128 Ill. 2d 388, 415, 539 N.E.2d 1172 (the court held that trial judges can draw on their
powers of observation, judicial experience and familiarity of local
conditions and prosecutors as a guide in distinguishing a true case
of discrimination from a false one). However, reviewing courts
must attempt to make a meaningful assessment of the State's reasons
for challenging venirepersons if Batson is to be followed in
practice and not just theory. Walls, 220 Ill. App. 3d 564.
One of the purposes of voir dire is to observe the demeanor of
the prospective jurors. A trial court is in the best position to
observe the demeanor of the venirepersons and then evaluate the
State's explanation for exercising a peremptory challenge. Benson,
266 Ill. App. 3d at 1001. Because an explanation that focuses on
a venireperson's body language or demeanor lends itself to pretext,
it must be scrutinized carefully; however, the demeanor of a
prospective juror has traditionally been an important factor in
jury selection, and thus constitutes a legitimate, racially-neutral
reason for exercising a peremptory challenge. Williams, 164 Ill. 2d 1, 19, 645 N.E.2d 844 (1994) (the court held that the trial
court's assessment of the State's race-neutral reason for exclusion
of a venireperson, because the person failed to remove his hat in
court, was not erroneous). The Fryer court similarly upheld the
exclusion of a venireperson based on the State's reason that he was
unemployed, unwilling to make eye contact with the prosecutor and
wearing sunglasses which made the prosecutor unable to see what he
"was doing." Fryer, 247 Ill. App. 3d 1051, 1061, 618 N.E.2d 377
(1993). See also, People v. Gaston, 256 Ill. App. 3d 621, 622, 628 N.E.2d 699 (1993) (holding that a reviewing court will generally
rely on the trial judge's determination regarding an exclusion of
a venireperson based on the demeanor of the venireperson because
such exclusion "forms the historical basis of the peremptory
system," and absent a "specific attack on the trial judge's
finding," that finding is not clearly erroneous).
Moreover, when the State does not rely solely on one reason in
explaining a peremptory challenge, the challenge can be deemed
race-neutral on another reason given. People v. Randall, 283 Ill.
App. 3d 1019, 671 N.E.2d 60 (1996). In addition to holding that
demeanor is a race-neutral factor in juror exclusion, our courts
have also held that a prospective juror's unemployment status is a
race-neutral reason for exercising a peremptory challenge. Gaston,
256 Ill. App. 3d at 623. See also, People v. Mack, 128 Ill. 2d 231, 241, 538 N.E.2d 1107 (1989); and People v. Campbell, 240 Ill.
App. 3d 179, 608 N.E.2d 229 (1994). Exclusions on the basis of the
prospective juror's unmarried status has also been held to be a
race-neutral factor, especially when almost all the jurors
impanelled were married and had children. Gaston, 256 Ill. App. 3d
at 622, citing People v. Baisten, 203 Ill. App. 3d 64, 79, 560 N.E.2d 1060 (1990).
In the present case, we hold that the trial court's
determination that there was no systematic exclusion of minority
venirepersons based on the State's proffered reasons for excluding
Brown and Perkins was not erroneous because a discriminatory intent
was not inherent in the State's explanations. The State offered
more than one reason for excepting both Brown and Perkins. While
the State's reasons for excluding Brown and Perkins based on their
demeanor (i.e., that Brown wore sunglasses and that Perkins sat in
a "defiant" manner with her arms crossed) should be scrutinized
closely on review for pretext, a careful review of the record does
not indicate discriminatory intent based on the State's reasons.
It must be remembered that the trial judge, who was able to view
the complained of "demeanor" of both venirepersons, nonetheless
accepted the State's reasons for exclusion based on these reasons,
even after defense counsel pointed out to the court that the
courtroom was exceptionally sunny.
Moreover, the State's challenges can be deemed race-neutral on
other proffered reasons than demeanor, i.e. Brown's unemployment
status and both Brown's and Perkin's marital status. Of the five
prospective jurors from both the first and second panel that were
excluded by the State, four were unmarried. While the fifth
venireperson (Bonestro) was married, he was excluded by the State
for the specific reason that he had four prior drug arrests.
Additionally, 9 of the 12 selected jurors were married, two were
single and the marital status of one is not specified in the
record. Because Gaston, in which most of the selected jurors were
married with children, determined that a venireperson's marital
status is a race-neutral factor, we find that the State's alleged
reasons for excepting Brown and Perkins based on marital status, as
defendant argues, constitutes a nondiscriminatory reason for
exclusion.
We also briefly note that defendant has misquoted the record
in stating that "the State excepted Eloise Mason (Mason), a
divorced nurses [sic] aide who was living with her adult child.
(R. B110-132, A 47)." A review of page A 47 reveals that Mason
worked for a publishing company and resided with her fiancé and
youngest daughter. Similarly, a review of pages R. B110-132 does
not indicate that Mason was a nurse's aide. Moreover, even if
defendant's characterizations of Mason were accurate, defendant has
failed to provide this court with an explanation of how Mason's
exclusion is relevant to Brown's and Perkins' exclusions.
Defendant next contends that the trial court's "ignorance of
the law," in stating that a defendant of a different race had no
standing to challenge the exclusion of members of another race and
in ignoring the requirement that a trial court make a prima facie
determination before asking the State to present race-neutral
reasons, should be considered by this court in reviewing whether
the trial court applied the correct law to determine that no
systematic exclusion based on race existed. The State contends
that the trial court's "momentary confusion" on whether defendant
had standing to challenge the exclusion of prospective jurors of a
different race was obviated after both defense counsel and the
prosecution reminded the court that the focus of the inquiry was
the jurors themselves and not the race of defendant. The State
argues that because the trial court acknowledged that "both sides
were right" and that defendant had standing, the record is clear
that the trial court followed the law in determining that defendant
failed to make a prima facie showing of discrimination.
Although it is not clear from defendant's brief, defendant
seems to argue that this court should somehow "consider" the fact,
that the trial court initially made an allegedly erroneous
statement regarding the law of standing to present a Batson motion,
when we determine whether the trial court erred in finding that
defendant did not, in fact, establish a prima facie case.
Defendant cites to no authority for his assertion that a reviewing
court should "consider" the trial court's alleged "ignorance of the
law" when determining whether the trial court's acceptance of the
State's proffered reasons for exclusion was clearly erroneous, and
has therefore waived this issue. Wendt, 163 Ill. 2d at 346.
Moreover, because the trial court ultimately ruled that defendant
had standing to bring a Batson motion and heard defendant's
argument regarding purposeful discrimination, no error occurred
regarding this issue. Even if defendant's assertion was more
thoroughly briefed, because the prima facie issue is moot, this
court need not consider any alleged errors regarding this issue.
For the reasons stated, the judgment of the circuit court is
affirmed.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]The court in fact acknowledged that the sun was shining
in the courtroom during voir dire.
[fn2]The races of these jurors are not indicated in the
record.
[fn3]Pursuant to this "argument," defendant appears to compare
these two excluded women with each other, the reasons for which we
are unable to ascertain. Defendant maintains that other than "the
fact that the other two black jurors were excluded; other
enumerated factors are apparent in this case," i.e. Brown and
Perkins "were heterogeneous" because "they differed" from each
other in that Perkins was divorced while Brown had never married;
Perkins owned her own home while Brown rented; Perkins was a nurse
while Brown did not work. Based on these statements, we cannot
determine what defendant's argument is and, in any event, defendant
has waived this "argument" in failing to cite to any authority.
Wendt, 163 Ill. 2d at 356.
June 10, 1998
No. 1--96--3090
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ROBERT MARTINEZ, ) Honorable
) Fred G. Suria,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a jury trial, defendant Robert Martinez was found
guilty of first degree murder and sentenced to 20 years'
imprisonment. On appeal, defendant contends that the circuit court
erroneously determined that defendant failed to make a prima facie
case of racial discrimination during jury selection. For the
reasons set forth below, we affirm.
On October 3, 1994, Fillamon Ibarra-Saucedo was shot to death
at the LaAlondra tavern located at 2010 West 18th Street in
Chicago, and defendant was subsequently charged with first degree
murder of Ibarra-Saucedo. At trial, the court conducted a voir
dire examination of two panels of venirepersons. Among the persons
interviewed in the first panel were Patricia Brown, Valerie Perkins
and Gregory Bonestro. Brown was a single black woman who lived
with her three children and one grandchild. Brown did not work
outside of the home. Perkins was a single black woman who lived
alone in a home where she had resided for 17 years. Perkins had
been a registered nurse since 1976 and had worked at her current
job for 11 years. Bonestro, whose race was not indicated in the
record, was employed and lived in an apartment with his wife and
children.
The trial court excluded four venirepersons for cause from the
first panel with no objections from either the State or defendant's
counsel. The State, however, challenged Brown, Perkins and
Bonestro with three of its seven peremptory challenges. Defendant
challenged two venirepersons and made a Batson motion with regard
to the State's challenges to Brown, Perkins and Bonestro.
Thereafter, the following discussion ensued:
"MR. PALMER [defendant's counsel]: Based
on my review of the cards, it appears there is
really nothing to separate the three
individuals from the remainder of the panel
with regard to Miss Brown, forty-three,
single, three kids. Although she doesn't own
a home, she rents. She lived in the same
place eleven years.
Miss Perkins is forty-five, divorced,
three adult kids. She is an educated person
as is the majority of this panel. She is a
nurse, which I believe at least one other
person that has been accepted by the State.
She is a crime victim as many of the panel
that is accepted by the State. She also owns
a home. She has lived in her same address for
seventeen years.
***
Judge, it's our contention that there's
nothing separating and distinguishing these
*** individuals other than their race, and I
believe that at this time we've met our
burden, and we'd ask for--
THE COURT: State?
MR. NOONAN [Assistant State's Attorney]:
I don't believe that is a prima facie burden.
THE COURT: Yes.
***
THE COURT: *** I'll address all the
questions where there's a systematic excuse of
person of the same race, am I correct, or
creed or color as the defendant. Two of the
ladies, Miss Brown and Miss Perkins are both
black or African Americans.
MR. PALMER: For the record, they are the
only two African Americans or black persons in
this panel.
THE COURT: That's correct.
It's my understanding the Defense would
not, would not have the standing to object, am
I correct?"
Defendant's counsel responded that he did not believe that was
correct, but that he believed "there was a case," the name of which
he could not remember, where a white defendant made the same
argument regarding exclusion of blacks. The State responded that
there was a U.S. Supreme Court case regarding a white defendant who
"complained about the exclusion of blacks, and that was not found
to be a valid reason by the U.S. Supreme Court." The State claimed
that it believed that the case "came back" for other reasons than
the fact that the defendant did not have standing because he was
white, and that "the inquiry goes more to the jurors themselves,
not the race of the defendant." The trial court agreed, and found
that there was "no systematic exclusion of anyone" in this case.
However, the trial court asked the State to explain the reasons for
its challenges "so the record [will be] complete two years later if
someone else upstairs disagrees."
The State responded that it excluded Brown because she "sat in
the court with sunglasses on for quite awhile," she did not work,
her answers were practically inaudible, and she was single with
three children and a grandchild. Perkins was also single with
three children, she sat in the jury box with her arms folded during
questioning of the other venirepersons, and, in the State's
opinion, "presented a very defiant attitude" when questioned by the
court. Bonestro had four prior drug arrests.
Regarding Brown, defendant's counsel countered that the sun
was shining through the windows[fn1] and that Brown did remove her
sunglasses when she was being questioned. He further claimed that
the fact Brown was single and had children was not a valid reason
to have Brown removed from the jury. He also argued that Perkins,
whose children were all adults, exhibited a "substantial stability"
in living on her own for 17 years, and holding a job for 11 years
while being a single parent. Lastly, defendant's counsel argued
that the fact that Bonestro had been arrested was not "sufficient
to exclude him." Accordingly, he argued that the State failed to
show sufficient race-neutral reasons for the exclusion of Brown,
Perkins and Bonestro, and requested that the court deny the
exclusions. The State responded:
"Just so the record is clear, if your Honor has
not found a prima facie case, we don't have to
offer any race neutral reasons, and your Honor
just asked me as an aside for those reasons,
which is what I did."
In response, the court stated, "I would agree. I would find there
is no systematic exclusion. I'll note your exception."
Five members of the panel were then selected as jurors:
Thomas Boecher, who had lived in a home for 12 years with his wife,
and had been a concrete truck driver for approximately 10 years;
Paul Heckman, who worked outside his home as an actuary and lived
in a condominium with his wife; Albert Janulis, who was a retired
senior management systems specialist and had lived in a home for 36
years with his wife; Linda Salinas, a schoolteacher, who had lived
in her home for 2« years with her employed husband and two
children; and Kathryn Zerate, a registered nurse, who had lived in
her home for 16 years with her employed husband and family.[fn2]
The trial court then called a second panel and continued voir
dire. After the court finished questioning the individual
venirepersons, it excused one for cause with no objections from the
State or defendant's counsel. The State utilized two of its
peremptory challenges against single women whose races also are not
indicated in the record. Seven members of the second panel, whose
races are also not indicated in the record, were selected as
jurors. Of these seven jurors, four were married and two were
single. The seventh juror's marital status is not indicated in the
record, but he claimed that he had resided in a home with his
parents for the past 21 years.
After the conclusion of defendant's trial, defendant was
convicted of first degree murder and sentenced to 20 years'
imprisonment. This appeal followed.
Defendant contends that the trial court erroneously determined
that he failed to establish a prima facie case of systematic
exclusion of venirepersons based on race because there was a
pattern of strikes by the State against African-American
venirepersons and because the excluded African-American
venirepersons were a heterogenous group which shared race as their
only common characteristic. The State contends that the trial
court properly determined that defendant failed to establish a
prima facie case of discrimination and, assuming arguendo that
defendant did establish a prima facie showing, the record clearly
indicates that the State overcame that showing by offering neutral
explanations for exclusion of the venirepersons other than their
race.
In Batson v. Kentucky, 476 U.S. 79, 86, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Supreme Court held that "purposeful racial
discrimination in selection of the venire violates a defendant's
right to equal protection because it denies him the protection that
a trial by jury is intended to secure." Batson provides a three-
step process for the evaluation of race discrimination claims in
jury selection. People v. Munson, 171 Ill. 2d 158, 174, 662 N.E.2d 1265 (1996). An objecting defendant must first make a prima facie
showing that the State has exercised peremptory challenges on the
basis of race. If the defendant makes such a showing, then the
burden shifts to the prosecution to articulate a race-neutral
explanation for excluding the venireperson in question. The trial
court then determines whether the defendant has met his burden of
proving purposeful discrimination. Munson, 171 Ill. 2d at 174.
The trial court must next consider the State's proffered rationale
for exercising its peremptory challenges and decide whether the
reasons are merely pretextual and whether purposeful discrimination
has taken place. People v. Benson, 266 Ill. App. 3d 994, 998, 641 N.E.2d 617 (1994).
A prima facie showing of discrimination under Batson requires
that a defendant demonstrate that "relevant circumstances" in the
case raise an inference that the prosecutor exercised peremptory
challenges to exclude potential jurors from the jury on account of
their ethnicity. People v. Hudson, 157 Ill. 2d 401, 425-26, 626 N.E.2d 161 (1993). The "relevant circumstances" necessary to
establish a prima facie case include: (1) a pattern of strikes
against minority venirepersons; (2) a disproportionate use of
peremptory strikes against minority venirepersons; (3) the level of
minority representation in the venire as compared to the jury; (4)
the prosecutor's questions and statements during voir dire and
while exercising peremptory challenges; (5) whether the excluded
minority venirepersons were a heterogeneous group sharing race as
their only common characteristic; and (6) the race of the
defendant, victim and witnesses. Hudson, 157 Ill. 2d at 425-26.
A trial court's decision as to whether a defendant has established
a prima facie case of purposeful discrimination against black
venirepersons will not be overturned unless it is against the
manifest weight of the evidence. People v. Henderson, 142 Ill. 2d 258, 287, 568 N.E.2d 1234 (1990).
Defendant's primary argument in the case at bar is that he
established a prima facie case of purposeful discrimination based
on the State's use of peremptory strikes against two venirepersons.
Defendant contends that because the trial court asked the State to
provide reasons for excluding venirepersons, without first making
a determination that defendant had met his burden of establishing
a prima facie case of discrimination, this court need only rule on
whether defendant in fact established a prima facie showing of
discrimination. Defendant argues at length that he sufficiently
demonstrated two of the six Hudson factors necessary to establish
a prima facie case of discrimination: (1) a pattern of peremptory
strikes by the State against African-Americans because the State
challenged 100% of the African-Americans in the first panel; and
(2) the excluded venirepersons were heterogeneous based on
defendant's comparisons to them and the selected venirepersons.
The State argues that defendant failed to cite to any
authority holding that a pattern of peremptory strikes is
demonstrated whenever the State strikes all of the representatives
of a particular racial group. The State further argues that Brown
and Perkins were not a heterogeneous group because they shared
characteristics other than race, including a disrespectful attitude
toward the court. The State therefore contends that the trial
court properly determined that defendant failed to meet his prima
facie burden of establishing purposeful discrimination.
In Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), which neither party cites to, the
Supreme Court held that the preliminary issue of whether the
defendant has made a prima facie case of purposeful discrimination
becomes moot where the trial court fails to determine whether a
prima facie showing has been made, the State offers an explanation
for the peremptory challenge without any prompting from the trial
court, and the trial court rules on the ultimate question of
intentional discrimination. Hudson, 157 Ill. 2d at 427. In
Hudson, another case which neither party cites to, the State
attempted to argue that the issue of a prima facie showing of
discrimination did not become moot because, unlike the trial court
in Hernandez, the trial court in Hudson specifically prompted the
State to offer explanations for its peremptory challenges.
Applying Hernandez, our supreme court in Hudson disagreed with the
State and held that the prima facie issue becomes moot after the
trial court finds neutrality in the State's explanations for its
exclusions of venirepersons regardless of whether the State had or
had not been prompted by the trial court to provide explanations.
Hudson, 157 Ill. 2d at 427-28. See also, People v. Mitchell, 152 Ill. 2d 274, 604 N.E.2d 877 (1992).
Our courts have repeatedly stated that after determining that
the issue of whether a defendant made a prima facie case was moot
because the trial court ruled on the ultimate question of
purposeful discrimination by finding that the State's explanations
were valid, a reviewing court then turns to the next step of the
Batson analysis and considers whether the State presented race-
neutral reasons for the exclusion of black venirepersons. People
v. Thomas, 266 Ill. App. 3d 914, 920, 641 N.E.2d 687 (1994). In
Thomas, after the defendant moved for mistrial under Batson, the
trial court held that the defendant failed to establish a prima
facie case of discrimination. However, the trial court nonetheless
required the State to provide reasons for its exclusions because
the court "believe[d] that there would be certain panels under the
Illinois Appellate Court First District that would substitute [the
trial court's] opinion." Thomas, 266 Ill. App. 3d at 918. See
also, People v. Davis, 287 Ill. App. 3d 46, 52, 677 N.E.2d 1340
(1997) (after determining that the prima facie case issue was moot,
the court held that it "need only address the ultimate issue of
whether there was intentional discrimination"); and Hudson, 157 Ill. 2d at 428 (after determining that the prima facie case issue
was moot, the court held that "we need only review the trial
court's ruling that the State's proffered reasons *** were race-
neutral"). We also note that People v. Walls, 220 Ill. App. 3d
564, 581 N.E.2d 264 (1991), a case that defendant cites to in his
brief, specifically held that even if the trial court did err in
that case in deciding the preliminary question of whether a prima
facie showing of discrimination had been made, that issue need not
be considered on review because the trial court heard the State's
reasons and ruled on the issue of discrimination. Walls, 220 Ill.
App. 3d at 573.
In the present case, like Hernandez and Hudson, the issue of
whether defendant established a prima facie case of discrimination
is moot because the trial court prompted the State to present its
reasons for exercising its challenges against the venirepersons.
And as in Thomas, the trial court here, contrary to defendant's
argument, first found that defendant failed to establish a prima
facie case before requesting reasons from the State for its
exclusions in case "someone else upstairs disagrees." Because the
trial court found "no systematic exclusion" after hearing the
State's proffered reasons, we hold that the initial prima facie
issue in the Batson analysis is moot. Because the issue is moot,
we need not discuss defendant's argument that two of the Hudson
factors necessary in establishing a prima facie case exist in this
case, nor the State's lengthy counter-argument on the same issue.
We briefly note that defendant's reliance on People v.
Jackson, 145 Ill. 2d 43, 582 N.E.2d 125 (1991), in support of his
argument that, because the trial court requested that the State
provide reasons for excluding Brown and Perkins without first
making the determination that defendant met its burden of
establishing a prima facie case of discrimination, this court is
therefore "only ruling on whether there was indeed a prima facie
showing of discrimination," is misplaced. We first observe, as
discussed above, that the trial court found that defendant failed
to establish a prima facie case before the State informed the court
of its reasons for its exclusion of venirepersons. Moreover,
defendant merely cites to Jackson; he fails to provide any specific
reasoning or argument as to how Jackson is applicable to the case
at bar. When an appellant seeks reversal, theories which are not
pursued or advanced with citation to relevant authority are deemed
waived. People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 179
(1994). Defendant has thus waived this argument.
Notwithstanding defendant's waiver, Jackson clearly does not
stand for the proposition that a reviewing court may only rule on
whether a defendant established a prima facie case of
discrimination where a trial court asked the State to provide race-
neutral reasons for exclusion of venirepersons without first
determining that the defendant had met its burden. In Jackson,
when the State exercised a peremptory challenge against a black
juror, the trial court, on its own initiative, required the State
to provide reasons for excusing the juror notwithstanding that the
defendant had neither raised a Batson issue nor attempted to
establish a prima facie case of discrimination. While the Jackson
court cautioned trial courts against procedures whereby "the first
step in the Batson analysis is omitted altogether," it never
specifically held that it was limited on review to the sole
question of whether a prima facie case had been established.
(Emphasis added.) Jackson, 145 Ill. 2d at 98. Additionally,
Jackson is distinguishable from the present case; as discussed
above, unlike defendant here, the Jackson defendant never raised a
Batson issue, nor attempted to establish a prima facie case of
discrimination before the State offered its reasons for exclusion
of venirepersons. Jackson, 145 Ill. 2d at 96.
We next address the issue of whether the State's proffered
reasons for its exclusions of venirepersons were race-neutral.
Because defendant, as previously discussed, argues that the only
relevant issue on appeal is this court's determination of whether
a prima facie case had been established, defendant did not directly
address the issue of whether the State's proffered reasons were
race-neutral. However, because the two issues involve a somewhat
similar analysis and consideration on review, defendant's argument
regarding the prima facie issue will be discussed in relation to
the analysis of whether the State's proffered reasons for exclusion
were race-neutral.
Defendant contends that there was a pattern of strikes against
African-Americans because in challenging Brown and Perkins, the
State effectively challenged 100% of the potential African-American
venirepersons.[fn3] Defendant argues that the State's articulated
marital status for exclusion of Brown and Perkins was "a basis that
strongly suggests illicit motives." Defendant cites to Walls in
support of his proposition that "this court has frowned upon the
use of a woman's status as an unmarried woman as a basis for
excluding jurors." Defendant asserts that "[e]ven if arguendo,
being an unmarried mother demonstrates traits that would not make
that individual an unbiased juror, with statistics showing that 50%
of marriages end in divorce, extending that stigma to divorced
individuals is unacceptable." Defendant also argues that the fact
that Brown wore sunglasses while sitting in the jury box until she
was questioned, even though it was obvious she was shielding her
eyes from the sun, and the fact that Perkins kept her arms folded,
are "simply not credible reasons to exclude jurors."
The State contends that its reasons for excluding Brown--
because she sat in the jury box with sunglasses on, she did not
work, her answers were almost inaudible, and she was single with
three children and a grandchild--were clearly race-neutral. The
State argues that, although defendant noted that the sun was
shining in the courtroom, the trial court nonetheless had the
opportunity to observe Brown's demeanor and to assess the
legitimacy of the explanation offered by the State for her
exclusion. The State claims that its reasons for excluding
Perkins--because she was single, had three children, and the
prosecutor believed that she presented a defiant attitude when she
was questioned by the court and during questioning of the other
venirepersons--were also race-neutral reasons.
The State further argues that the prosecutor never stated that
Brown and Perkins were challenged because they were unmarried
mothers. According to the State, the factor that distinguished
both Brown and Perkins was their disrespect toward the court and
not their status as unmarried mothers. The State also maintains
that all of the women excluded by the State were unmarried. The
State further argues that defendant's reliance on Walls is
misplaced because the court in Walls determined that the
prosecutor's reason for striking a potential juror because of her
parental status and the proximity in age between the potential
juror's children and defendant were pretextual based on its
observation that there were several other jurors who were accepted
by the State despite the fact that they were parents of children
who were approximately the same age as the defendants. (Emphasis
added.) Walls, 220 Ill. App. 3d at 574. Therefore, the State
maintains that the Walls holding is inapplicable to this case
because the excluded juror's marital status was not even considered
by the Walls court.
It is well settled that the second step in the Batson analysis
does not demand an explanation by the State that is persuasive or
even plausible. The issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reasons offered will
be deemed race-neutral. People v. Figgs, 274 Ill. App. 3d 735,
739-40, 654 N.E.2d 555 (1995). A neutral explanation is an
explanation based on something other than the race of the
venireperson. Benson, 266 Ill. App. 3d at 998.
The exclusion of even one prospective juror based on race is
unconstitutional and requires reversal of a conviction. People v.
Britt, 265 Ill. App. 3d 129, 133, 638 N.E.2d 282 (1994). A
reviewing court should not overturn a trial court's finding on the
issue of discriminatory intent in the prosecution's use of
preemptory challenges unless it is convinced that the trial court's
determination was clearly erroneous. People v. Champs, 273 Ill.
App. 3d 502, 506, 652 N.E.2d 1184 (1985). Because the trial
court's finding regarding discriminatory intent is a matter of fact
and a question of credibility, the trial court's findings are
afforded a great deal of deference on review. Munson, 171 Ill. 2d
at 174. See also, People v. Mahaffey, 128 Ill. 2d 388, 415, 539 N.E.2d 1172 (the court held that trial judges can draw on their
powers of observation, judicial experience and familiarity of local
conditions and prosecutors as a guide in distinguishing a true case
of discrimination from a false one). However, reviewing courts
must attempt to make a meaningful assessment of the State's reasons
for challenging venirepersons if Batson is to be followed in
practice and not just theory. Walls, 220 Ill. App. 3d 564.
One of the purposes of voir dire is to observe the demeanor of
the prospective jurors. A trial court is in the best position to
observe the demeanor of the venirepersons and then evaluate the
State's explanation for exercising a peremptory challenge. Benson,
266 Ill. App. 3d at 1001. Because an explanation that focuses on
a venireperson's body language or demeanor lends itself to pretext,
it must be scrutinized carefully; however, the demeanor of a
prospective juror has traditionally been an important factor in
jury selection, and thus constitutes a legitimate, racially-neutral
reason for exercising a peremptory challenge. Williams, 164 Ill. 2d 1, 19, 645 N.E.2d 844 (1994) (the court held that the trial
court's assessment of the State's race-neutral reason for exclusion
of a venireperson, because the person failed to remove his hat in
court, was not erroneous). The Fryer court similarly upheld the
exclusion of a venireperson based on the State's reason that he was
unemployed, unwilling to make eye contact with the prosecutor and
wearing sunglasses which made the prosecutor unable to see what he
"was doing." Fryer, 247 Ill. App. 3d 1051, 1061, 618 N.E.2d 377
(1993). See also, People v. Gaston, 256 Ill. App. 3d 621, 622, 628 N.E.2d 699 (1993) (holding that a reviewing court will generally
rely on the trial judge's determination regarding an exclusion of
a venireperson based on the demeanor of the venireperson because
such exclusion "forms the historical basis of the peremptory
system," and absent a "specific attack on the trial judge's
finding," that finding is not clearly erroneous).
Moreover, when the State does not rely solely on one reason in
explaining a peremptory challenge, the challenge can be deemed
race-neutral on another reason given. People v. Randall, 283 Ill.
App. 3d 1019, 671 N.E.2d 60 (1996). In addition to holding that
demeanor is a race-neutral factor in juror exclusion, our courts
have also held that a prospective juror's unemployment status is a
race-neutral reason for exercising a peremptory challenge. Gaston,
256 Ill. App. 3d at 623. See also, People v. Mack, 128 Ill. 2d 231, 241, 538 N.E.2d 1107 (1989); and People v. Campbell, 240 Ill.
App. 3d 179, 608 N.E.2d 229 (1994). Exclusions on the basis of the
prospective juror's unmarried status has also been held to be a
race-neutral factor, especially when almost all the jurors
impanelled were married and had children. Gaston, 256 Ill. App. 3d
at 622, citing People v. Baisten, 203 Ill. App. 3d 64, 79, 560 N.E.2d 1060 (1990).
In the present case, we hold that the trial court's
determination that there was no systematic exclusion of minority
venirepersons based on the State's proffered reasons for excluding
Brown and Perkins was not erroneous because a discriminatory intent
was not inherent in the State's explanations. The State offered
more than one reason for excepting both Brown and Perkins. While
the State's reasons for excluding Brown and Perkins based on their
demeanor (i.e., that Brown wore sunglasses and that Perkins sat in
a "defiant" manner with her arms crossed) should be scrutinized
closely on review for pretext, a careful review of the record does
not indicate discriminatory intent based on the State's reasons.
It must be remembered that the trial judge, who was able to view
the complained of "demeanor" of both venirepersons, nonetheless
accepted the State's reasons for exclusion based on these reasons,
even after defense counsel pointed out to the court that the
courtroom was exceptionally sunny.
Moreover, the State's challenges can be deemed race-neutral on
other proffered reasons than demeanor, i.e. Brown's unemployment
status and both Brown's and Perkin's marital status. Of the five
prospective jurors from both the first and second panel that were
excluded by the State, four were unmarried. While the fifth
venireperson (Bonestro) was married, he was excluded by the State
for the specific reason that he had four prior drug arrests.
Additionally, 9 of the 12 selected jurors were married, two were
single and the marital status of one is not specified in the
record. Because Gaston, in which most of the selected jurors were
married with children, determined that a venireperson's marital
status is a race-neutral factor, we find that the State's alleged
reasons for excepting Brown and Perkins based on marital status, as
defendant argues, constitutes a nondiscriminatory reason for
exclusion.
We also briefly note that defendant has misquoted the record
in stating that "the State excepted Eloise Mason (Mason), a
divorced nurses [sic] aide who was living with her adult child.
(R. B110-132, A 47)." A review of page A 47 reveals that Mason
worked for a publishing company and resided with her fiancé and
youngest daughter. Similarly, a review of pages R. B110-132 does
not indicate that Mason was a nurse's aide. Moreover, even if
defendant's characterizations of Mason were accurate, defendant has
failed to provide this court with an explanation of how Mason's
exclusion is relevant to Brown's and Perkins' exclusions.
Defendant next contends that the trial court's "ignorance of
the law," in stating that a defendant of a different race had no
standing to challenge the exclusion of members of another race and
in ignoring the requirement that a trial court make a prima facie
determination before asking the State to present race-neutral
reasons, should be considered by this court in reviewing whether
the trial court applied the correct law to determine that no
systematic exclusion based on race existed. The State contends
that the trial court's "momentary confusion" on whether defendant
had standing to challenge the exclusion of prospective jurors of a
different race was obviated after both defense counsel and the
prosecution reminded the court that the focus of the inquiry was
the jurors themselves and not the race of defendant. The State
argues that because the trial court acknowledged that "both sides
were right" and that defendant had standing, the record is clear
that the trial court followed the law in determining that defendant
failed to make a prima facie showing of discrimination.
Although it is not clear from defendant's brief, defendant
seems to argue that this court should somehow "consider" the fact,
that the trial court initially made an allegedly erroneous
statement regarding the law of standing to present a Batson motion,
when we determine whether the trial court erred in finding that
defendant did not, in fact, establish a prima facie case.
Defendant cites to no authority for his assertion that a reviewing
court should "consider" the trial court's alleged "ignorance of the
law" when determining whether the trial court's acceptance of the
State's proffered reasons for exclusion was clearly erroneous, and
has therefore waived this issue. Wendt, 163 Ill. 2d at 346.
Moreover, because the trial court ultimately ruled that defendant
had standing to bring a Batson motion and heard defendant's
argument regarding purposeful discrimination, no error occurred
regarding this issue. Even if defendant's assertion was more
thoroughly briefed, because the prima facie issue is moot, this
court need not consider any alleged errors regarding this issue.
For the reasons stated, the judgment of the circuit court is
affirmed.
Affirmed.
LEAVITT, P.J., and CAHILL, J., concur.
[fn1]The court in fact acknowledged that the sun was shining
in the courtroom during voir dire.
[fn2]The races of these jurors are not indicated in the
record.
[fn3]Pursuant to this "argument," defendant appears to compare
these two excluded women with each other, the reasons for which we
are unable to ascertain. Defendant maintains that other than "the
fact that the other two black jurors were excluded; other
enumerated factors are apparent in this case," i.e. Brown and
Perkins "were heterogeneous" because "they differed" from each
other in that Perkins was divorced while Brown had never married;
Perkins owned her own home while Brown rented; Perkins was a nurse
while Brown did not work. Based on these statements, we cannot
determine what defendant's argument is and, in any event, defendant
has waived this "argument" in failing to cite to any authority.
Wendt, 163 Ill. 2d at 356.
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