People v. Pecor , 213 Ill. App. 3d 472 ( 1991 )

PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, the defendant, Gregory Pecor, was convicted of murder and sentenced to a term of life in prison without parole. On appeal, the defendant has raised numerous issues. In this opinion we limit our consideration to whether the trial judge erred in ruling that the defendant, a white male, did not have standing to object to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury.

We reverse and remand with directions.

We find the following facts to be relevant to the disposition of this appeal. During the jury selection, the prosecution used four of its first five peremptory challenges to exclude black venirepersons from the petit jury. The defense counsel interposed an objection arguing that the prosecution’s use of peremptory challenges was racially motivated, thereby entitling the defendant to a Batson hearing. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) At the time the trial judge was asked to rule on the defense counsel’s request, the guidelines for a Batson hearing required, in part, that the defendant be a member of a “cognizable racial group” and that the excluded juror be a member of the defendant’s race. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) Accordingly, the trial judge denied the defendant’s request for a Batson hearing on the ground that the defendant did not have standing. Because the trial judge precluded defense counsel from pursuing the issue, the record does not reflect the racial composition of the venire, the race of any persons subsequently excluded from the venire, or the racial composition of the petit jury.

After his conviction, the defendant filed this appeal. In his brief, the defendant argued that the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury violated his rights to an impartial jury and to equal protection of the laws under the Illinois and Federal constitutions. Subsequently, the United States Supreme Court decided two cases which have direct bearing on these issues. Prior to oral arguments, the Court decided Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803. There, the Court held that a white criminal defendant has standing to raise an objection, under the sixth amendment (U.S. Const. amend. VI), to a prosecution’s use of peremptory challenges excluding black venirepersons from a petit jury; but such an exclusion was not in violation of that amendment. Therefore, at the oral argument, the parties argued only the equal protection issue. After oral arguments, the Court decided Powers v. Ohio (1991), 499 U.S._, 113 L. Ed. 2d 411, 111 S. Ct. 1364. In the context of the Powers decision, we are now called upon to decide whether the defendant, a white male, has standing to raise an equal protection objection to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury. For the reasons set forth below, we hold that he does.

Opinion

In Powers, a white male defendant was convicted of murder, aggravated murder, and attempted aggravated murder, and was sentenced to 53 years in prison. In the jury selection prior to trial, the prosecution used peremptory challenges excluding a total of seven black venirepersons from the petit jury. The defense counsel objected and asked the trial judge to compel the prosecution to explain their reasons for the exclusions. The trial judge denied the request. The defendant appealed his conviction, contending that his own race was irrelevant to the “right to object” to the prosecution’s use of peremptory challenges. (Powers, 499 U.S. at_, 113 L. Ed. 2d at 420, 111 S. Ct. at 1366.) The Ohio Appellate Court affirmed the conviction, and the Ohio Supreme Court dismissed Power’s appeal. The United States Supreme Court reversed and held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” (Powers, 499 U.S. at_, 113 L. Ed. 2d at 419, 111 S. Ct. at 1366.) The case was remanded to the Ohio trial court for a Batson hearing.

Because Powers would be dispositive of the instant appeal, we must determine whether Powers requires retroactive application. The United States Supreme Court has held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” (Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716.) Therefore, the rule announced in Powers is to be applied to this appeal.

Accordingly, we hold that Gregory Pecor, a white male, had standing to object to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury. We also find that, because the prosecution used four of its first five peremptory challenges to exclude black venirepersons, the defendant has raised a “legitimate and well-founded objection! ]” as propounded in Powers and Illinois case law. (Powers, 499 U.S. at_, 113 L. Ed. 2d at 429, 111 S. Ct. at 1374; see also People v. Drew (1990), 201 Ill. App. 3d 271, 559 N.E.2d 40 (prosecution’s use of four out of six peremptory challenges to exclude minorities from the petit jury provided basis for defendant’s legitimate objection).) Therefore, while expressing no opinion about the ultimate merits of the defendant’s objection, we remand this case to the trial court for a Batson hearing.

We are aware that the record does not reflect the racial composition of the venire, the race of any persons subsequently excluded from the venire, or the racial composition of the petit jury and that these facts may be relevant to the establishment of a prima facie case by the defendant. We also observe, however, that neither the trial judge, the prosecution, nor the defendant could have predicted the new procedure mandated by the United States Supreme Court in Powers. Upon remand, therefore, we direct the trial judge to allow the defendant an opportunity to present evidence to establish a prima facie case under Batson rather than require the defendant to rely entirely upon the current record. People v. Allen (1988), 168 Ill. App. 3d 397, 521 N.E.2d 1172.

Finally, this court retains jurisdiction over this case to review the trial court’s ruling after the Batson hearing, and, if necessary, to address the other issues raised by the defendant in this appeal. Allen, 168 Ill. App. 3d 397, 521 N.E.2d 1172.

Reversed and remanded with directions.

GORDON, J., concurs.