People v. Davis , 368 Ill. App. 3d 17 ( 2006 )

Second Division
September 29, 2006
No. 1-01-1966
THE PEOPLE OF THE STATE ) Appeal from the
OF ILLINOIS, ) Circuit Court of
) Cook County
)
Plaintiff-Appellee, )
)
)
v. ) No. 99 CR 3720
)
)
JACKIE DAVIS, ) Honorable
) Edward M. Fiala, Jr.
) Marjorie C. Laws,
Defendant-Appellant. ) Judges Presiding.
JUSTICE HALL delivered the opinion of the court:
This cause is before us after remand for a hearing pursuant to Batson v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant Jackie
Davis appeals from the trial court's finding that the State provided legitimate, race-
neutral reasons for peremptorily striking African-American venireperson Derrick
Summers. The facts and procedural history of this case are fully set forth in our
previous opinion (People v. Davis, 345 Ill. App. 3d 901, 803 N.E.2d 514 (2004)) and will
only be repeated as necessary for resolution of this appeal.
Following a jury trial, defendant was convicted of second-degree murder and
sentenced to 18 years' imprisonment. After defendant's motion to reconsider sentence
was denied he filed a timely notice of appeal on April 10, 2001.
On direct appeal, defendant contended, among other things, that he was denied
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his right to a fair trial because prosecutors struck Summers from the jury in violation of
the principles set forth in Batson. Upon review, we found that defendant established a
prima facie case of purposeful racial discrimination in regard to the State's striking of
Summers and that the trial court's ruling to the contrary was against the manifest weight
of the evidence. Davis, 345 Ill. App. 3d at 907.
We also held that the trial court erred by improperly collapsing the first and third
steps of the Batson analysis into an undifferentiated review when the court determined
that no prima facie case had been established based in part upon its finding that the
prosecutors were credible. Davis, 345 Ill. App. 3d at 910-11. We found that the trial
court erred in this regard because it was only at the third and final step of the Batson
analysis, after the State had satisfied its step-two burden of production and articulated
its race-neutral reasons for excusing the venireperson in question, that the court was
allowed to evaluate the prosecutor's credibility.
We subsequently remanded the case to the trial court with directions to conduct
a Batson hearing and proceed with steps two and three of the Batson analysis where
the State was to provide a race-neutral explanation for striking Summers and the trial
court then evaluate whether the proffered explanation was pretextual. We retained
jurisdiction in order to review the trial court's ruling on the Batson matter and to address
remaining issues raised in the appeal. Judge Marjorie C. Laws heard the case following
remand as Judge Edward M. Fiala, who presided over the original voir dire, had since
retired from the bench.
Upon remand, the trial court conducted a Batson hearing and afterwards
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concluded there was no intentional discrimination and that the prosecutors' explanations
for peremptorily striking Summers were not pretextual. Defendant now appeals from
that decision.
As a preliminary matter we address the waiver issue raised
by the State. The State contends that the principal argument
defendant now raises on appeal is one he never made at the trial
level, namely that the prosecutors' primary explanation for striking Summers
based on his rap sheet was pretextual because they were unaware of the rap sheet at
the time they excluded him. The State's waiver argument is meritless.
As previously mentioned, we remanded this case to the trial court with directions
to conduct a Batson hearing where the State was to provide a race-neutral explanation
for striking Summers and the trial court then evaluate whether the proffered explanation
was pretextual. We retained jurisdiction in order to review the trial court's ruling on the
Batson matter and we permitted the parties to submit supplemental briefs following the
outcome of the Batson remand hearing. Defendant's argument is not waived.
Turning to the merits, once a defendant establishes a prima facie case of
purposeful discrimination under Batson and the State satisfies its step-two burden of
production by articulating a race-neutral explanation for excusing the venireperson in
question, the analysis proceeds to the third and final step where the trial court examines
any rebuttal by defense counsel, assesses the genuineness of the State's explanations,
and then determines whether those explanations are sufficient to rebut defendant's
prima facie case. See People v. Baisten, 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060
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(1990). In doing so, the trial court must make "'a sincere and reasoned attempt to
evaluate the prosecutor's explanations in light of the circumstances of the case.'"
People v. Harris, 129 Ill. 2d 123, 174-75, 544 N.E.2d 357 (1989), quoting People v. Hall,
35 Cal. 3d 161, 167, 197 Cal. Rptr. 71, 75, 672 P.2d 854 (1983). A trial court's
determination that a prosecutor's reasons for striking a prospective juror were
sufficiently race-neutral to withstand a Batson challenge, turns largely on questions of
fact grounded in credibility and is therefore generally accorded great deference and will
only be reversed if it is against the manifest weight of the evidence. Harris, 129 Ill. 2d at
175.
At the Batson remand hearing, prosecutors who conducted the original voir dire
testified that three factors motivated them to strike Summers: his rap sheet revealed he
was previously arrested for murder and other crimes which he did not divulge during
voir dire; his answers during voir dire led them to believe he was a defense witness in a
prior rape case; and he interrupted Judge Fiala during voir dire. The trial court found
the first proffered explanation regarding the rap sheet sufficiently race-neutral to
withstand the Batson challenge, and after giving defense counsel an opportunity to
respond to the explanation, denied the Batson challenge.
The information contained in Summers' rap sheet and his misrepresentations
during voir dire provided facially race-neutral reasons for striking him. Concealing a
prior criminal charge constitutes a race-neutral reason for exercising a peremptory
challenge. See People v. Kitchen, 159 Ill. 2d 1, 22, 636 N.E.2d 433 (1994). On this
record, we cannot say that the manifest weight of the evidence does not support the trial
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court's finding that the race-neutral explanation offered by prosecutors was valid.
Defendant, however, contends that the prosecutors' reliance upon Summers' rap
sheet as a reason for striking him was pretextual because the record indicates that
prosecutors were actually unaware of the rap sheet when they struck him. Defendant
maintains that the prosecutors' failure to alert the trial court to the existence of the rap
sheet during voir dire, even after the court afforded them an opportunity to respond to
defense counsel's Batson motion, and their failure to question Summers about the
content and veracity of the information contained in the rap sheet and his
misrepresentations during voir dire, all indicate that prosecutors were actually unaware
of the rap sheet when they struck Summers and that their subsequent explanation for
striking him based on his criminal history was pretextual. In further support of this
argument defendant points to the comment Judge Laws made at the beginning of the
Batson remand hearing, "first of all, I don't know why the State when they went into the
side bar with Judge Fiala they didn't bring the issue up of the rap sheet at that time.
Had that been done, this case would not have been sent back."
Defendant also contends that the prosecutors' proffered reasons for striking
Summers were not consistently applied where prosecutors struck Summers purportedly
because he had a criminal history and misrepresented himself during voir dire, yet they
accepted, least likely to decide this case, venireperson Arnold Council, who also had a
criminal history and who also misrepresented himself during voir dire. Defendant
maintains that this inconsistency lends further weight to his argument that the
prosecutors' subsequent explanations for striking Summers based on his criminal
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history and misrepresentations are pretextual.
Although we find merit in defendant's arguments, we are constrained to reject
them since the evidence is not strong enough to show that prosecutors were unaware of
Summers' rap sheet when they struck him.
Defendant next contends he was denied his constitutional right to a fair trial when
the trial court allowed the State to admit as substantive evidence Amos Wards's
handwritten statement to police that defendant admitted shooting the victim. Defendant
maintains that Ward's handwritten statement was inadmissible because no foundation
was laid for its admission and it was impermissibly cumulative to Ward's grand jury
testimony.
Defendant requests we consider the merits of these
contentions under the plain error rule on the grounds that the
evidence was closely balanced on the issue of whether he acted in
self-defense and because submission of the handwritten statement
to jurors during jury deliberations was so prejudicial he was
denied a fair trial. We must deny defendant's request because
the record indicates that defense counsel deliberately waived any
issue as to the admissibility of Ward's handwritten statement as
substantive evidence by strategically allowing the statement to
be admitted in support of his theory of self-defense.
The record shows that not only did defense counsel fail to
object to the publication of Ward's handwritten statement,
counsel also failed to object to its admission, and on cross-
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examination of Ward, repeatedly attempted to get Ward to admit to
the contents of his statement. In addition, the record also
shows that in closing arguments, defense counsel utilized the
contents of Ward's handwritten statement and grand jury testimony
to argue defendant's theory of the case. On this record, we
cannot say the trial court committed plain error in allowing
Ward's handwritten statement to be admitted as substantive
evidence.
Defendant next maintains that a number of remarks by the
prosecutor during closing argument deprived him of a fair trial
by improperly misstating the law and burden of proof regarding
self-defense; improperly implying that his theory of self-defense
was fabricated; implying that he was predisposed to violence; and
improperly claiming that the shooting was the result of rival
gangs competing for drug business. Defendant requests we
consider the merits of these contentions under the plain error
rule on the grounds that the evidence was closely balanced and
the remarks so prejudicial he was denied a fair trial. We must
deny defendant's request.
A reviewing court will not reverse a jury's verdict on the
bases of improper remarks made during closing argument unless the
comments resulted in substantial prejudice to defendant and
constituted a material factor in his conviction. See People v.
Alvine, 173 Ill. 2d 273, 292-93, 671 N.E.2d 713 (1996). Having
reviewed the record, we are not convinced that the alleged
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improper remarks, considered individually or collectively, rose to the level of
plain error or are of such magnitude that defendant was denied a fair trial. Furthermore,
the trial court instructed the jury that closing arguments are not evidence and that any
statements or arguments not based on the evidence should be disregarded. Our courts
have determined that such instructions reduce the likelihood that improper remarks
made during closing argument rise to the level of plain error. See People v. Bratton, 178
Ill. App. 3d 718, 726, 533 N.E.2d 572 (1989).
Defendant finally contends the trial court abused its discretion in sentencing him
to 18 years' imprisonment by failing to consider mitigating factors such as his young age
(sixteen years old at the time of the offense), lack of criminal history, his family
responsibilities, his low I.Q. of 66, and evidence that he acted in self-defense.
Defendant asserts that we should reduce his sentence pursuant to Supreme Court Rule
615(b)(4) (134 Ill.2d R. 615(b)(4)) or remand the cause for resentencing. We must
disagree with defendant.
It is well settled that a trial court has broad
discretionary powers in imposing sentence. People v. Stacey, 193
Ill. 2d 203, 209, 737 N.E.2d 626 (2000). The trial court is
granted such deference because it is in a better position than
the reviewing court to weigh such factors as the defendant's
credibility, demeanor, general moral character, mentality, social
environment, habits and age. Stacey, 193 Ill. 2d at 209; People
v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991). The
standard of review is whether the trial court has abused its
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discretion in imposing sentence. Streit, 142 Ill. 2d at 19.
A sentence which falls within the statutory range of a
particular offense is not an abuse of discretion unless it is at
variance with the spirit and purpose of the law or is manifestly
disproportionate to the nature of the offense. People v. Fern,
189 Ill. 2d 48, 54, 723 N.E.2d 207 (1999). Neither exception
applies in the present case.
Defendant was sentenced to 18 years' imprisonment for
second-degree murder. The sentencing range for this offense is
between 4 and 20 years. 730 ILCS 5/5-8-1(a)(1.5) (West 2000).
Defendant's sentence falls within the statutory range.
In addition, review of the record reveals the trial judge
properly considered the mitigating factors. Just before imposing
sentence, the trial judge stated:
"I have had the opportunity to listen to the arguments of
able counsel in aggravation and mitigation. I have
considered those statutory factors as well. I have read and
re-read the presentence report and I am thoroughly
conversant with it as amended.
I have considered the age of the defendant at the time of
offense and his age now. His lack of prior criminal record.
His potential for rehabilitation. Mindful he has two
children, there is a dispute as to whether or not he
supports those children.
It's upon a consideration of all and each and every one of
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these factors that this court is reflected upon and
accordingly Mr. Davis, for the offense of second degree
murder for which you stand convicted, you're sentenced to
the Illinois Department of Corrections penitentiary division
for a determinant term of 18 years."
In the instant case, the trial court did not abuse its
discretion in sentencing defendant. The trial court considered
the relevant factors and the sentence imposed was within the
statutory sentencing range for second-degree murder and was not
manifestly disproportionate to the nature of the offense
committed.
Accordingly, for the reasons set forth above, the judgment of the circuit court of
Cook County is affirmed.
Affirmed.
SOUTH and KARNEZIS, J.J., concur.
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