People v. Knott

586 N.E.2d 479 (1991) 224 Ill. App. 3d 236 166 Ill. Dec. 521

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Christopher KNOTT, Defendant-Appellant.

No. 1-85-3248.

Appellate Court of Illinois, First District, Fifth Division.

December 27, 1991. Rehearing Denied January 29, 1992.

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Guy L. Miller IV, Sandra Z. Nueschen, of counsel), for plaintiff-appellee.

Michael J. Pelletier, Deputy Defender, Chicago (Karen Daniel, of counsel), for defendant-appellant.

Justice GORDON delivered the opinion of the court:

A jury found defendant Christopher Knott guilty of armed robbery. The court sentenced him to a term of natural life imprisonment. On appeal, defendant contends that the State exercised its peremptory challenges in a racially discriminatory manner; that he was denied a fair trial where an alibi witness was improperly impeached regarding his failure to report the alibi to the police; that the prosecutor made prejudicial remarks in closing arguments, accusing defense alibi witnesses of lying, and suggesting that defendant frightened witnesses into not testifying; and that the Illinois Habitual Criminal Act is unconstitutional (Ill.Rev.Stat.1985, ch. 38, par. 33B-1, et seq.).

Defendant was charged with the July 16, 1984 armed robbery of a food store in Chicago. In January 1985, defendant received a trial without a jury, and was found guilty of armed robbery. During the trial, defendant's attorney was charged with misconduct by the Attorney Registration and Disciplinary Commission in an unrelated civil matter. Shortly after defendant here was convicted in January 1985, his defense counsel was suspended from the practice of law for six months. On May 29, 1985, the trial court granted defendant's post-trial motion for a new trial because of the presumption that defense counsel's attention was not adequately focused on his representation of defendant during the trial. See People v. Williams (1982), 93 Ill. 2d 309, 67 Ill. Dec. 97, 444 N.E.2d 136.

In September 1985, defendant was retried before a jury pursuant to an intervening jury demand.

After the jury was sworn in, the court heard argument from defense counsel on his motion for a mistrial based on the State's racially motivated use of peremptory challenges. The State declined the opportunity to argue. The court ruled that no systematic exclusion of jurors had occurred.

Prior to trial, the court entered an order prohibiting the parties from referring to the earlier trial.

At the second trial, Awad Hassan testified that at 8:45 a.m., on July 16, 1984, he and an employee, John Ivy, were working in a small neighborhood grocery store which Hassan owned. The store was located in the basement of an apartment building in Chicago. Hassan was at the cash register behind the counter when he saw defendant enter the store. Ivy was behind the meat case about six to ten feet away. Defendant asked for cigarettes and handed Hassan $1.00. Hassan had never seen defendant before. Defendant stood two or three feet from Hassan. The lighting conditions were very good. When Hassan opened the cash register, defendant "glanced around, * * * and he came around the counter right away," pointed a gun at Hassan's neck and said, "This is a stick-up." Defendant stood next to Hassan, and Hassan was looking straight at him.

Defendant then told Hassan to lay down and said, "Shut up, don't say nothing, do what I say." Hassan complied. As he was laying on the floor, he was still able to look up and observe defendant. After several seconds, defendant told Hassan to stand up and open the cash register. Hassan then complied with defendant's order to lay down on the floor again. Defendant placed the money from the cash register in a bag. Defendant ordered Hassan to stand up again and to put the change from the register in the bag. Hassan complied, while defendant kept the gun held against Hassan's neck.

During this time, Ivy was standing behind the meat case, watching. Defendant ordered Ivy to come up front, and told him not to make any stupid moves, and to shut up.

Also during the incident, a regular customer came into the store. He stood at the door, and then "he looked and he backed up." Defendant looked at the man and said, "Get out of here."

Defendant then exited the store, first pointing the gun at the two men and saying "Don't move ``til I leave." Hassan ran after defendant, and Ivy followed him. They did not catch up to defendant, but Ivy recovered defendant's hat when it fell off his head. Hassan described defendant to the police as 5'8" to 5'9" tall, 140 pounds; in his 20's; brown eyes; light brown mustache; medium brown complexion, wearing a gray t-shirt, blue jeans, a white cap and medium brown-tinted prescription glasses.

Hassan testified further that several days later, Hassan was told some information about the robbery by a regular customer named Tyrone. He did not know Tyrone's last name. Tyrone told him that the person who robbed the store was nicknamed "Snake," and lived at 48th and Langley, and hung around the neighborhood of 50th and Champlain. Hassan reported this to the police. The police did not attempt to locate or speak to Tyrone. Hassan and Ivy then accompanied several police officers to 48th and Langley, and then to 50th and Champlain, where they observed defendant, who was wearing tinted glasses. They identified defendant to the police officers, who then arrested him. The two men also identified defendant in court.

John Ivy testified that he worked as a manager at Hassan's store. On July 16, 1984, he was behind the meat counter when defendant entered the store. He observed defendant going behind the cash register, pointing a gun at Hassan's neck. He had never seen defendant before. Ivy complied with defendant's order to lay down on the floor. Ivy laid on his back with his head propped up, facing Hassan and defendant. He was able to see defendant's face. Ivy described the robbery similarly to Hassan, except that he did not see the regular customer enter the store. He did see defendant turn around and heard him speak to the customer. Ivy recovered defendant's hat while they were chasing him. The entire incident lasted five minutes.

Ivy did not know Tyrone, and did not know about the conversation between Hassan and Tyrone. Ivy described defendant as a black male with a light brown complexion, 5'8" tall; 140 to 150 pounds; wearing a white cap, gray shirt, blue jeans and brown-tinted glasses.

Ivy testified further that three days later, on July 19, 1984, he first accompanied Hassan and two police officers to 48th and Langley. There were black men and women on the street, but he recognized no one. At 50th and Champlain, there were black men and women on the street. He recognized defendant. "[M]e and Mr. Hassan, we jumped up at the same time and seen the man walking down the street and said, ``that's the guy.'" They did not say it in response to any questioning by the officers. The officers asked whether Ivy and Hassan were sure, and they replied yes. Defendant was wearing glasses, but that fact did not particularly stand out in Ivy's mind. "I noticed his face, I recognized him by his face."

Eugene Poole, a Chicago police officer, testified for the State that on July 19, 1984, he and his partner drove Hassan and Ivy to the South Side of Chicago to look for the man who robbed the store. At Langley and 48th there were "numerous" black people, including men, women and children. At 50th Street and Champlain, Hassan and Ivy "almost simultaneously" pointed at someone. There were other black males in the vicinity. Poole exited the police car with his gun drawn and approached defendant. He arrested defendant.

On cross-examination, Poole testified that Hassan told them he had some information about the person who robbed the store. "Mr. Hassan had informed me that he had some information, where he got that I have no idea." He did not ask Hassan who gave him the information. He did not try to verify the information. Poole testified further that, although they were looking for a person with the nickname "Snake," Poole never asked defendant or otherwise verified whether he was known as "Snake." No fingerprints were taken from the counter or cash register at the store. Poole did not know there had been a white hat recovered by Ivy during the incident. Poole never sought out and interviewed Randolph Cassell, a security guard working across the street from Hassan's store on the day of the robbery, although Cassell purportedly saw Hassan chasing a man after the robbery. Poole did not seek out the regular customer who entered the store during the robbery. Defendant's residence was five or six blocks from 48th and Langley. Poole's police report stated that defendant had a dark complexion; weighed 160 pounds [according to defendant]; and was 29 years old.

Thomas O'Connor, a Chicago police officer, testified for defendant that he participated in the investigation of the robbery. He did not order a lineup for Randolph Cassell to view. They tried to find Cassell that night, but there was no phone number and he was not at his place of employment. They did not try to find him after that night. O'Connor asked Hassan the source of his information relating to defendant's identity. "He told me it was told to him in confidentiality." Hassan "chose not to" reveal the identity of his source. There was no verification that defendant was ever known as "Snake." O'Connor agreed that no fingerprints were taken at the scene. He knew nothing about a white hat recovered by Ivy.

Barry Elmore testified for defendant that he was a friend of defendant's. He worked as a grammar school music teacher. He had known defendant for 12 or 14 years. He met defendant when they both worked for the Neighborhood Youth Corps. He later hired defendant to work as a sales clerk in a record store. On July 15, 1984, defendant asked Elmore to pick him up at home. They went over to Elmore's house and ate dinner and watched videos. Elmore went to bed and defendant slept in the living room. On July 16, 1984, Elmore woke up at 6:30 a.m. Defendant was still in the living room. Elmore drove defendant to his mother's house between 9:15 and 9:30 a.m. Elmore remembers the exact date because "[t]hat was the last day he was at my house prior to the arrest."

Elmore testified that over the years defendant had worn both clear and tinted glasses. Elmore had never known him by the nickname of "Snake." On July 15 and 16, 1984, Elmore did not see defendant with a white hat.

On cross-examination, Elmore testified that he and defendant were close friends. Defendant looked like he was in his 20's; 5'9"; dark brown eyes; medium complexion.

Elmore testified further that he remembered July 15, 1984 "[f]airly well because of the event that followed."

"[PROSECUTOR]. Did you tell the police the story you've just told the members of the jury today?

A. Police never questioned me.

* * * * * *

Q. Did you ever come to any of the court proceedings and give any prior testimony as to what you've just told the ladies and gentlemen of the jury today?

* * * * * *

A. I was never called."

On re-cross-examination, the prosecutor pursued this line of questioning:

"[PROSECUTOR]. When [defendant], your good friend was arrested for this, you were outraged, weren't you?

A. I was a little upset about it. The word outraged is a little strong.

Q. If you dropped him off at his mother's house when you say you dropped him off, which just happens to be about the time of the robbery and when he was with you, you knew it could have been [sic] Christopher Knott, right?

A. I didn't know the date of the robbery.

Q. You knew the date of the robbery was July 16, 1984, didn't you?

A. Not at that time.

Q. Well, you knew shortly thereafter, right, because he was arrested for it, right on the 19th?

A. Yes, but there was always a question.

* * * * * *

Q. And you knew that he was arrested for an armed robbery that occurred three days before?

A. No.

Q. You just found out about this?

A. I didn't know there was a date, there was some confusion as to the date at that particular time.

Q. You just found out about this recently?

A. I would say in the last six or seven months as to the exact date.

Q. In the last six or seven months * * * did you tell anyone * * *?

* * * * * *

A. I didn't have occasion to talk."

Christine Knott, defendant's mother, testified on behalf of defendant that on July 16, 1984 between 9:00 and 9:30 a.m., Elmore dropped defendant off at home. She had never known defendant to wear a white hat, and had never known him to be referred to as "Snake."

The jury found defendant guilty of armed robbery. The court sentenced defendant to a term of natural life imprisonment under the Habitual Criminals Act. Ill.Rev. Stat.1985, ch. 38, par. 33B-1.

OPINION

Defendant first contends that the State exercised its peremptory challenges in a racially discriminatory manner.

In Batson v. Kentucky (1986), 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, the Court held that the equal protection clause of the fourteenth amendment is violated in certain cases where a prosecutor uses peremptory challenges to exclude members of a cognizable racial group, of which defendant is a member, solely on account of their race. (Batson, 476 U.S. at 84, 106 S. Ct. at 1716, 90 L.Ed.2d at 79-80.) The decision in Batson v. Kentucky was handed down while this case was in the appellate process following the 1985 trial. Thus, Batson applies retroactively to this case. Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649.

The record indicates that after the defense had exercised its seven peremptory challenges, the State exercised five consecutive peremptory challenges against Theresa Corbin, Lethia Garrett, Mildred Leggett, Delores Walls, and Joseph Crockett. Defense counsel noted on the record that the venire had been equally made up of black and white people. He also noted that of the five consecutive peremptory challenges exercised by the State, the first four were black women, and the fifth was a white male. The State did not exercise its remaining two peremptory challenges. The trial court later noted that two blacks sat on the jury, and the two alternate jurors were black.

While the State offered no reasons to explain its peremptory challenges at the trial court level, it offers several reasons on appeal. The State maintains that "[a]lthough the record does not indicate the People's reasons for excluding the four veniremen, it is clear from an examination of their testimony that the reasons were not based on race." The State maintains that the four black women were excluded because all four of them lived on the south side of Chicago, where the armed robbery occurred and where defendant lived. In addition, three of the four women were unmarried. Finally, the State points to the fact that one woman and her father worked for the Chicago Housing Authority and thus, the State argues, it "is fair to assume that she has been exposed to criminal activity" and thus may have "preconceived ideas regarding the criminal justice system."

We first address the State's waiver arguments. The State maintains that defendant waived the issue by failing to make a timely objection, since defendant did not object "until after the entire jury was sworn." The State, however, immediately goes on to "acknowledge that the trial judge may have delayed a defense motion made during voir dire," but it complains that the initial motion ("if such a motion was made"), was made off the record.

The record shows that after the jury was sworn, the trial judge stated: "I know that you had a motion, [defense counsel], and you were kind enough to save it until after the further selection process occurred." Defense counsel then moved for a mistrial on the basis that the State used its peremptory challenges in a racially discriminatory manner. Defense counsel also argued to the trial court, without contradiction by the judge or the prosecutor: "After Ms. Walls had been excused by the State and the fourth consecutive challenge to a black juror, it was then the time I approached the bench and told you I wished to make a motion for mistrial, and I waited until this point to make a record." In view of these statements made by the trial judge and defense counsel, we find that the record is sufficient to preserve the issue for review.

Moreover, the State failed to object to the timeliness of defendant's motion at the trial court level, and thus the State has waived its right to object to the timeliness on appeal. See People v. Andrews (1989), 132 Ill. 2d 451, 458, 139 Ill. Dec. 469, 548 N.E.2d 1025.

The State also maintains that defendant waived the issue because the record "is silent regarding the race of" the five people against whom the State exercised its peremptory challenges. The State, again, immediately concedes that "following voir dire, [defense counsel] indicated that [the four excluded women were] female African-Americans," and the male was white. The record shows that defense counsel argued to the trial court:

"The State challenged the following persons in order: Theresa Corbin, who is a female black. Lethia Garrett, female black. Mildred Leggett, who is a female black, and Delores Walls, who is a female black."

Neither the trial judge nor the prosecutor contradicted this statement. In fact, when the judge asked the prosecutor if he had a reply, the prosecutor merely stated: "I have absolutely no comment." In a related argument, the State complains that the record does not show the racial make-up of the jury or the venire. In denying the motion for a mistrial, however, the trial court specified: "Let the record show that * * * two of the jurors selected are black. * * * [B]oth alternate jurors are black * * *. So we have a total of four out of the fourteen people that will sit throughout this trial."

The State cites People v. Johnson (1986), 150 Ill.App.3d 1075, 104 Ill. Dec. 41, 502 N.E.2d 304, and People v. Partee (1987), 157 Ill.App.3d 231, 269, 110 Ill. Dec. 845, 511 N.E.2d 1165, where the court held that defendants in each of those cases failed to establish a prima facie case by not indicating in the record the race of the excluded venirepersons. Contra People v. McEwen (1987), 157 Ill.App.3d 222, 230, 109 Ill. Dec. 453, 510 N.E.2d 74 (declining to follow Johnson).

However, since the decisions in Johnson and Partee, our supreme court has decided that a defense attorney's statements concerning the race of excluded venire members may be considered when determining whether defendant made an adequate record or waived the Batson issue. People v. Andrews, 132 Ill.2d at 460-61, 139 Ill. Dec. 469, 548 N.E.2d 1025 (court may consider defense counsel's statements regarding race of excluded venirepersons). See also People v. Hooper (1987), 118 Ill. 2d 244, 244, 107 Ill. Dec. 250, 506 N.E.2d 1305 (Ryan, J., specially concurring) (noting that the trial record was made under pre-Batson guidelines, and thus it would be "manifestly unfair" to make a determination on that record); People v. Lann (1990), 194 Ill.App.3d 623, 633, 141 Ill. Dec. 283, 551 N.E.2d 276 (remand for Batson hearing; no waiver of Batson claim notwithstanding failure of record to indicate race of excluded jurors or members of venire); People v. Johnson (1987), 159 Ill.App.3d 991, 996, 112 Ill. Dec. 243, 513 N.E.2d 852 (based on Hooper, pre-Batson case must be remanded for Batson hearing, notwithstanding failure of record to show exact racial composition of the final jury); People v. Bolden (1987), 152 Ill.App.3d 631, 641, 105 Ill. Dec. 550, 504 N.E.2d 835 (pre-Batson case remanded for Batson hearing); People v. McNeal (1987), 160 Ill.App.3d 796, 806, 112 Ill. Dec. 288, 513 N.E.2d 897 (same). Cf. People v. Nicholson (1991), 218 Ill.App.3d 273, 160 Ill. Dec. 742, 577 N.E.2d 1313 (remand for Batson hearing, where trial court erred in finding defendant failed to make out a prima facie case; notwithstanding the fact that race of three accepted jurors was unknown; court directs that their race should be ascertained upon remand).

Similarly, in reviewing the denial of post-conviction relief, in People v. Mitchell, (1991), 221 Ill.App.3d 979, 991-92, 164 Ill. Dec. 249, 256-257, 582 N.E.2d 1193, 1200-1201 this court recently held that defendant had not waived his Batson claim, notwithstanding the failure of the record to disclose the race of the venirepersons. The court found that the waiver holding made in the direct appeal (People v. Mitchell (1987), 163 Ill.App.3d 58, 69, 114 Ill. Dec. 345, 516 N.E.2d 500 (finding defendant failed to make a prima facie case of purposeful discrimination because record failed to disclose race of excluded juror or remainder of venire)), had been "impliedly overruled by these later cases." Mitchell, citing People v. McDonald, 125 Ill. 2d 182, 194-95, 125 Ill. Dec. 781, 530 N.E.2d 1351; People v. Andrews, 132 Ill.2d at 462-63, 548 N.E.2d 1025. Cf. People v. Holder (1991), 213 Ill.App.3d 109, 112, 156 Ill. Dec. 744, 571 N.E.2d 528 (in appeal from denial of post-conviction petition, based on res judicata rule, defendant is not entitled to a Batson hearing under waiver rule decided in 1987 in direct appeal, since "that ruling was the law of Illinois until modified by the Illinois Supreme Court 2½ years later" in People v. Andrews).

We note that two recent cases from this court have found waiver where the record does not show the race of the venirepersons challenged by the State. (People v. Lovelady (1991), 221 Ill.App.3d 829, 839-40, 164 Ill. Dec. 273, 282-283, 582 N.E.2d 1217, 1226-1227 ("[T]he record does not identify this venireperson's race. Thus, defendant's objection to this venireperson's removal is waived"); People v. Wright, (1991), 218 Ill.App.3d 764, 161 Ill. Dec. 444, 578 N.E.2d 1090 (defendant waived Batson claim since there was "no independent evidence in the record to establish the race(s) of the jurors who the State challenged"; despite the fact that defense counsel apparently informed the court when it made its Batson motion that the State had challenged six people, including five blacks and one Indian).) Both opinions rely on People v. Evans (1988), 125 Ill. 2d 50, 62, 125 Ill. Dec. 790, 530 N.E.2d 1360. However, we perceive the basis of the two waivers in Evans to be predicated on the fact that, on remand for a Batson hearing, one juror's name had been removed from the list of excluded blacks set forth in an evidentiary stipulation submitted to the trial court at the hearing on remand; and the other juror's name had never been mentioned until appeal.

In regard to whether any remand is necessary here, the State argues that "this case should not be remanded because defendant has failed to establish a prima facie case of purposeful discrimination." However, we are not deciding the merits of defendant's Batson claim. "This court is simply determining, based on the record before us, whether defendant may attempt to establish a prima facie case of a Batson violation." (People v. Andrews, 132 Ill.2d at 461, 139 Ill. Dec. 469, 548 N.E.2d 1025; People v. McEwen, 157 Ill.App.3d at 230, 109 Ill. Dec. 453, 510 N.E.2d 74 (declining to follow Johnson; holding instead that defendant need not have made a prima facie case on the existing trial record, since under the pre-Batson law, defendant was not required to preserve such facts for the record; defense counsel's motion for mistrial indicating at least three challenges were used against blacks is sufficient to find no waiver); People v. Johnson (1987), 159 Ill.App.3d 991, 996, 112 Ill. Dec. 243, 513 N.E.2d 852 (court need not determine whether defendant established a prima facie case of racial discrimination prior to remanding pre-Batson case); People v. Bolden (pre-Batson case remanded for Batson hearing without deciding whether prima facie case established); People v. McNeal (same)).

We have repeatedly held that, where a defendant in a pre-Batson trial made a timely objection to the racial composition of the jury, the cause must be remanded for a Batson hearing. See, e.g., People v. Hooper, 118 Ill.2d at 244-45, 107 Ill. Dec. 250, 506 N.E.2d 1305 (in a supervisory order, remanding a series of pre-Batson cases for the limited purpose of a Batson hearing); People v. Lann; People v. Johnson (1987), 162 Ill.App.3d 12, 113 Ill. Dec. 840, 515 N.E.2d 825 (remanding pre-Batson case for a Batson hearing); People v. Bolden (pre-Batson case remanded for Batson hearing); People v. McNeal (same); People v. McEwen (same); People v. Johnson (1987), 159 Ill.App.3d 991, 996, 112 Ill. Dec. 243, 513 N.E.2d 852; People v. Johnson (1986), 148 Ill.App.3d 163, 101 Ill. Dec. 492, 498 N.E.2d 816; People v. Kindelan (1986), 150 Ill.App.3d 818, 104 Ill. Dec. 159, 502 N.E.2d 422; People v. Cannon (1986), 150 Ill. App. 3d 1009, 104 Ill. Dec. 82, 502 N.E.2d 345.

The State argues that, "It is of little consequence that these events occurred prior to Batson," because the trial judge did not apply the law in effect prior to Batson (see Swain v. Alabama (1965), 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759), and instead "applied the appropriate [Batson] standard in determining that there was no prima facie case of purposeful discrimination * * *."

Nevertheless, we believe a remand is necessary. While the original trial judge is no longer sitting as a judge (see People v. Mack (1989), 128 Ill. 2d 231, 131 Ill. Dec. 551, 538 N.E.2d 1107 (trial judge had retired and on remand the Batson hearing was conducted before a different judge); People v. Freeman (1991), 220 Ill.App.3d 825, 163 Ill. Dec. 342, 581 N.E.2d 293 (judge who presided over trial died and on remand the Batson hearing was assigned to a different judge); People v. Buckley (1987), 168 Ill. App. 3d 405, 118 Ill. Dec. 631, 522 N.E.2d 86 (trial judge retired and on remand the Batson hearing was conducted before a different judge)), on remand the new hearing judge should be given the opportunity to make factual and credibility findings using the guidelines of Batson. The trial judge "is in a superior position to determine whether the prosecutor's exercise of peremptory challenges was motivated by group bias." (People v. Evans 125 Ill.2d at 66-67, 125 Ill. Dec. 790, 530 N.E.2d 1360.) For example, on remand the trial judge may call either defendant's trial counsel or the venirepersons to testify at the Batson hearing (People v. Andrews, 132 Ill.2d at 463, 139 Ill. Dec. 469, 548 N.E.2d 1025; People v. McDonald (1988), 125 Ill. 2d 182, 125 Ill. Dec. 781, 530 N.E.2d 1351; People v. Freeman), or the trial judge may find it appropriate to permit defendant to use certain discovery procedures (People v. Freeman), or the trial judge may be able to make factual findings based upon his familiarity with the conditions at the time of the trial (People v. Mahaffey (1989), 128 Ill. 2d 388, 414, 132 Ill. Dec. 366, 539 N.E.2d 1172; People v. Boston (1991), 224 Ill.App.3d 218, 223-24, 166 Ill. Dec. 368, 372, 586 N.E.2d 326, 330) although this would have been more likely if remanded to the same judge who presided at the trial.

We acknowledge that nearly seven years have passed since the trial. (See Ford v. Georgia (1991), ___ U.S. ___, 111 S. Ct. 850, 112 L. Ed. 2d 935 (Court remands for Batson hearing despite the fact that the trial had taken place nearly seven years earlier, in 1984).) However, we agree with the language of Justice Ryan in his special concurrence in Hooper, which was later quoted by the majority of the court with approval in Andrews: "[I]t may well be that on remand the trial court will have to decide the prima facie question from a cold record, as this court could do now. But that will not necessarily be true in all cases. We should not preclude the defendant from making such an additional showing by deciding now in this court whether or not a prima facie case of discriminatory use of peremptory challenges has been made." (People v. Hooper, 118 Ill.2d at 245-46, 107 Ill. Dec. 250, 506 N.E.2d 1305 (Ryan, J., specially concurring), cited in People v. Andrews, 132 Ill.2d at 462, 139 Ill. Dec. 469, 548 N.E.2d 1025.) The trial judge must ultimately determine the decision based on "all the information and evidence defendant is able to muster." People v. Andrews, 132 Ill.2d at 463, 139 Ill. Dec. 469, 548 N.E.2d 1025.

Although the State argues that these reasons for excluding the four black women from the jury are inferable from the record, it has not purported to give racially-neutral reasons to the trial judge, nor was it required to do so under the law applicable at that time. The State on appeal, however, has offered what it deems to be racially-neutral reasons. It argues that "[a]lthough the record does not indicate the People's reasons for excluding the four veniremen, it is clear from an examination of their testimony that the reasons were not based on race." Under Hernandez v. New York "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, (1991), 500 U.S. ___, ___, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395, 405.

Consequently, even though the racially-neutral reasons urged by the State as being racially-neutral are raised for the first time on appeal, we have considered them to determine whether under the reasoning of Hernandez a determination of the neutrality of those reasons may be made by this court on appeal, without necessitating a remand for a determination of whether a prima facie case has been made by defendant. We have determined, as explained more fully below, that the cause must be remanded for a full hearing to determine whether a Batson violation occurred.

On remand, the trial court is not precluded from making a step one determination as to whether defendant has established a prima facie case; but in doing so, the court cannot ignore the reasons for exercising the challenges which were given by the State on appeal. If the court finds a prima facie case, in step two of the Batson hearing, the State should not be precluded from elaborating on these reasons, nor should the defense be precluded from taking discovery if it wishes to do so, after which the trial court may make its findings regarding the sincerity and credibility of the State's explanations.

The State asserts that the four black women who were excluded were all excluded for three reasons.

First, all four women lived on the south side of Chicago, where the armed robbery occurred and where defendant lived. See People v. Johnson (1991), 218 Ill.App.3d 967, 161 Ill. Dec. 628, 578 N.E.2d 1274 (extensively discussing cases involving exclusion of venirepersons on basis of their residence); People v. Williams (1988), 177 Ill. App. 3d 787, 792, 127 Ill. Dec. 215, 532 N.E.2d 1044 (juror's daily association in neighborhood where crime occurred is a common reason for exercising a peremptory challenge). But see People v. Boston, (Johnson, J., dissenting), 224 Ill.App.3d at 225, 166 Ill. Dec. at 373, 586 N.E.2d at 331 (State's exclusion of venire persons who lived on south side of Chicago, where defendant lived, was pretextual reason where the crime in question occurred on north side of Chicago; dissenting justice notes: "I have heard this same general explanation from the State time and time again" and while it "may have been legitimate in certain limited instances, it is certainly inappropriately applied" here, where the venire persons did not live in defendant's "immediate community or the community in which the incident actually occurred"). Cf. People v. Jackson (1991), 145 Ill. 2d 43, 163 Ill. Dec. 859, 582 N.E.2d 125 (court notes, without discussion, that trial judge rejected State's proffered reason that challenged black woman lived on west side of Chicago, the area where the crime occurred and, according to the prosecutor, the most violent community in the city).

Notably, however, Shirley Cutright sat on the jury and she lived on the south side of Chicago.

However, the fact that a characteristic shared by the excluded black jurors was also possessed by a white juror who was not excluded does not in and of itself mean that the exclusions were racially motivated, since the chosen jurors may exhibit some other trait which the prosecutor believes is desirable in a juror. People v. Young (1989), 128 Ill. 2d 1, 23-24, 131 Ill. Dec. 78, 538 N.E.2d 453.

Without a Batson hearing at the trial court level, however, we decline to make a finding as to whether the location of these persons' residences was a race neutral reason for excluding them from the jury. "The ultimate determinative factor is whether the trial judge chose to believe the prosecutor's race-neutral explanation. The question of intent to discriminate is a ``pure issue of fact, subject to review under a deferential standard'." (People v. Johnson, 218 Ill.App.3d 967, 161 Ill. Dec. 628, 578 N.E.2d 1274, quoting Hernandez, 500 U.S. at ___, 111 S.Ct. at 1869, 114 L. Ed. 2d at 409-10.) Moreover, there is nothing in the record indicating the proximity of the venirepersons' residences to the scene of the robbery, or to defendant's residence, since we would be hesitant to simply eliminate all potential jurors who reside in a full half of the city of Chicago.

The State also extends the "racially neutral" reason that three of the four women were unmarried, and cites People v. Mack (1989), 128 Ill. 2d 231, 241, 131 Ill. Dec. 551, 538 N.E.2d 1107, for the proposition that individuals who are single, unemployed and lack ties to the community may be considered a racially neutral reason for exclusion. In Mack, the court held that the prosecutor offered the racially neutral reason that the excluded divorced, unemployed woman raised questions as to how she was supporting herself. See also United States v. Cartlidge (5th Cir.1987), 808 F.2d 1064, 1070-71 (reasonable explanation includes prospective juror's status as single or divorced, in favor of married person; or unemployed status, in favor of a profession); People v. Kindelan (unemployment).

Here, Mildred Leggett was married and employed as a secretary for Blue Cross/ Blue Shield; Delores Walls was a single mother of a 16-year old, but had been employed as a leasing clerk for the CHA for 15 years; and Theresa Corbin was single and employed as a postal clerk. The trial court may find it of some significance that, while Walls, Corbin and Garrett were unmarried, four individuals who sat on the jury were also unmarried. The two alternates were also apparently unmarried. Thus, of the excluded jurors, only Lethia Garrett was divorced and unemployed, although the trial judge may choose to believe that Garrett could hardly be said to have lacked stability or ties to the community where she had previously worked as a machine operator for 18 years and her two daughters were married adults and employed.

Finally, the State raises the "racially neutral" explanation that Delores Walls and her father worked for the Chicago Housing Authority and thus, the State argues, it "is fair to assume that she has been exposed to criminal activity" and thus may have "preconceived ideas regarding the criminal justice system." Again, this type of reason must first be evaluated by the trial judge. The mere speculation that Walls had been exposed to crime, without more, may not be sufficient.

At the very least, defendant should be given the opportunity to test the subjective sincerity of the prosecutor. (See People v. Lockhart (1990), 201 Ill.App.3d 700, 146 Ill. Dec. 1011, 558 N.E.2d 1345.) We cannot make a final determination of the sufficiency of these reasons since, as stated above, Batson had not yet been promulgated when this trial occurred and the trial court has not had the opportunity to make a first-hand determination as to the relevant issues.

The State may point out on remand that it accepted two blacks on the panel, and two black alternate jurors. In addition, the State challenged one white male; and did not use two of their seven allotted peremptory challenges. The State offers the argument that "if they were truly trying to discriminate, the logical inference is that the People would have used all seven peremptory challenges to exclude African-Americans from the jury." When a prosecutor has peremptory challenges remaining but does not use them to strike a black venireperson, it may indicate an absence of an intent to discriminate. (People v. Hooper, 133 Ill.2d at 511, 142 Ill. Dec. 93, 552 N.E.2d 684; People v. Johnson, 218 Ill. App. 3d 967, 161 Ill. Dec. 628, 578 N.E.2d 1274.) However, even a single discriminatory act cannot be immunized by the absence of similar discriminatory acts. Batson, 476 U.S. at 95, 106 S. Ct. at 1722, 90 L.Ed.2d at 86-87; People v. Harris, (1989), 129 Ill. 2d 123, 135 Ill. Dec. 861, 884, 544 N.E.2d 357, 380.

The State also points out that racial issues may be minimized where both the defendant and the victims were minorities (People v. Holman (1989), 132 Ill. 2d 128, 177, 138 Ill. Dec. 155, 547 N.E.2d 124), and points out that defendant and Ivy are both black, and Hassan is a Pakistani. "The People have no advantage in excluding African-Americans where one of the victims is Pakistani." The State argues further: "The record does not indicate whether any jurors were Pakistani and it is not reasonable to infer that white jurors would be more sympathetic to a Pakistani victim than they would be to an African-American defendant." Any such inferences which the trial judge deems relevant may be argued on remand.

Because the issue on remand is limited to the alleged Batson violation, we go on to address the trial and sentencing errors alleged by defendant on appeal.

Defendant next contends that he was denied a fair trial because his alibi witness, Barry Elmore, was improperly impeached when the State attacked his credibility by inquiring about his failure to come forward on his own initiative and report the alibi to law enforcement authorities.

No objection was made at trial and the issue was not raised in defendant's post-trial motion, and thus is waived for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 119 Ill. Dec. 265, 522 N.E.2d 1124.) Defendant maintains, however, that the plain error rule applies (134 Ill.2d R. 615(a)) because the evidence was closely balanced. (See People v. Whitehead (1987), 116 Ill. 2d 425, 447-48, 108 Ill. Dec. 376, 508 N.E.2d 687.) The State counters, however, that the evidence here, far from being closely balanced, in fact is overwhelming in its favor, since two eyewitnesses identified defendant as the man who committed the armed robbery.

The two eyewitnesses, Hassan and Ivy, observed defendant at close range under good lighting during the robbery. They gave the police a description which substantially matched defendant. They both positively identified defendant on the street to the police officers. Ivy testified that he and Hassan identified defendant "at the same time." Officer Poole testified that there were numerous people on the street, and yet Hassan and Ivy "almost simultaneously" pointed out defendant. In addition, both Hassan and Ivy offered positive in-court identifications of defendant.

In contrast, the evidence presented by defendant was very weak. Defendant relies primarily on the alibi evidence. However, Elmore was a close friend of defendant, and the jury was free to disbelieve his testimony. Defendant's mother did not see defendant until half-hour to 45 minutes after the robbery, and thus her alibi testimony is not helpful in establishing his whereabouts at the time the crime was committed.

Defendant also points to the fact that no fingerprints were taken at the robbery scene, and no gun or proceeds of the robbery were ever recovered from him. This absence of physical evidence, however, does not weaken the identification testimony when viewed on its own terms.

Defendant also argues that the State's evidence is weakened by the fact that Hassan and Ivy expected to find someone wearing brown-tinted glasses at 50th and Champlain. However, the eyewitnesses' entire description of the robber matched defendant, not just the glasses. Ivy testified that the glasses did not stand out, and that he "recognized [defendant] by his face."

Defendant also argues that "Tyrone" was never identified; Tyrone's information that defendant was called "Snake" was never verified; and Tyrone's information that the robber lived near 48th and Langley was not supported by the fact that defendant actually lived one-half mile from 48th and Langley. These arguments have little relevance here, however, since the informant, Tyrone, gave information to a citizen, not to the police. The underlying purpose of requiring the State to prove the reliability of a police informant does not apply here.

We agree with the State, therefore, that the evidence was not closely balanced, and thus we will not apply the plain error rule. See People v. Ayala (1990), 208 Ill.App.3d 586, 595, 153 Ill. Dec. 492, 567 N.E.2d 450 (evidence was not closely balanced and plain error rule did not apply where two victims provided eyewitness account and identification of defendant, and case not otherwise complicated by conflicting evidence).

We go on, however, to address the merits of this issue.

Generally, silence has no probative value and testimony regarding a witness's silence must be excluded unless the failure to state a fact was "definitely and manifestly inconsistent" with the witness's trial testimony. (People v. McMullin (1985), 138 Ill.App.3d 872, 93 Ill. Dec. 311, 486 N.E.2d 412.) Prior silence may be used to impeach a witness where it is "shown that the witness had an opportunity to make a statement, and under the circumstances, a person would normally have made the statement." (People v. Conley (1989), 187 Ill.App.3d 234, 244, 134 Ill. Dec. 855, 543 N.E.2d 138.) In People v. Conley, the court stated:

"Where a witness is a friend of the accused, and has had knowledge of the friend's arrest before trial, evidence of the witness' failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities." (Conley, 187 Ill.App.3d at 245, 134 Ill. Dec. 855, 543 N.E.2d 138.)

Defendant argues that because Elmore testified there was some confusion as to the date of the robbery, it would not have been natural to "seek out the police or an assistant state's attorney and report this [alibi] evidence, or * * * come to court unannounced prior to trial and speak to the authorities or the trial judge." Instead, the "natural inclination would be to contact and cooperate with defense counsel," since the "primary concern" of the law enforcement authorities, after the charge is placed, "is to gather additional evidence against the accused." Defendant continues: "By the time Mr. Elmore realized he was a potential alibi witness it was too late to prevent [defendant] from being arrested or charged, so a call to the police or the prosecutor's office would have been pointless."

In People v. Taylor (1986), 141 Ill.App.3d 839, 96 Ill. Dec. 189, 491 N.E.2d 3, the court held that impeachment of defense witnesses was proper where the witnesses admitted they failed to go to the police with information that might have exonerated defendant, and they were friends of the defendant and knew of his arrest eight months before trial. Taylor, 141 Ill.App.3d at 845-46, 96 Ill. Dec. 189, 491 N.E.2d 3.

In People v. Martinez (1979), 76 Ill. App. 3d 280, 32 Ill. Dec. 139, 284-85, 395 N.E.2d 86, the court ruled that the State properly impeached a witness regarding his failure to go to the police where he was a friend of defendant and waited eight months to report his story which supported defendant's claim of self-defense.

Similarly, here Elmore waited 14 months to provide the alibi information although his testimony indicated he had sufficient notice of the circumstances to give the exculpatory evidence to the authorities prior to trial.

Elmore testified that he was a close friend of defendant and that they spent a lot of time together. Significantly, on July 19, 1984, Elmore was aware of the fact that defendant was arrested that day. Elmore offered the tenuous explanation, which the jury was permitted to discount, that although he knew on July 19, 1984, that defendant was arrested, "there was some confusion as to the date [of the robbery] at that particular time." He found out the exact date of the robbery "in the last six or seven months." Notably, however, the record shows that Elmore did not testify at the first trial, which was held only four months before Elmore testified at the second trial. Moreover, Elmore had visited with defendant since his arrest. See Conley, 187 Ill.App.3d at 245, 134 Ill. Dec. 855, 543 N.E.2d 138 (significant that impeached witness was friend of defendant and had discussed the case with him before trial).

In fact, defendant himself did not seem to know about the alibi until just before the second trial. The robbery took place on July 16, 1984. Defendant was arrested on July 19, 1984. His first trial, at which Elmore did not testify, began on January 16, 1985. Jury selection for his second trial began on September 17, 1985.

On September 17, 1985, during the jury selection process, the defense announced that it would have one additional witness, Barry Elmore. When the State objected that defendant still had not filed an answer to discovery, defense counsel responded that he was "anticipating an alibi defense." Later, defense counsel stated, "At this time I will submit a defense of the State's inability to prove the defendant guilty beyond a reasonable doubt and alibi. I will give the State notice of the alibi. The alibi witness will be Mr. Barry Elmore * * *." The trial began on the following day, September 18, 1985, when Elmore testified.

We conclude that no error occurred because Elmore's knowledge of defendant's arrest long before trial, and his close relationship with defendant, made any "evidence of [his] failure to give exculpatory information to the authorities * * * admissible to impeach an exculpatory story offered for the first time at trial." People v. Conley, 187 Ill.App.3d at 245, 134 Ill. Dec. 855, 543 N.E.2d 138. See also People v. Taylor, 141 Ill.App.3d at 846, 96 Ill. Dec. 189, 491 N.E.2d 3; People v. Martinez, 76 Ill.App.3d at 284-85, 32 Ill. Dec. 139, 395 N.E.2d 86.

Defendant's reliance on People v. Fabian (1976), 42 Ill.App.3d 934, 1 Ill. Dec. 700, 356 N.E.2d 982, is misplaced. In Fabian, the State's witness delayed coming forward with evidence against defendant, and the issue was the weight, not the admissibility of the evidence. See Conley, 187 Ill. App.3d at 244, 134 Ill. Dec. 855, 543 N.E.2d 138 (distinguishing Fabian).

Moreover, any error here would be harmless where defendant did not announce the existence of a purported alibi until 14 months after his arrest, and one day before the second trial began. See People v. Watson (1981), 94 Ill.App.3d 550, 558, 50 Ill. Dec. 21, 418 N.E.2d 1015 (prosecutorial argument regarding silence of alibi witness improper, but was harmless error beyond a reasonable doubt where defendant testified on cross-examination that it was not until he had spent several months in jail and had been "racking his brain," that he remembered he had an alibi defense).

Defendant points to two prosecutorial remarks made during the State's rebuttal closing argument, and argues that these remarks deprived him of a fair trial.

Prosecutors are given wide latitude in closing argument. (People v. Newell (1990), 196 Ill.App.3d 373, 143 Ill. Dec. 15, 553 N.E.2d 722.) A prosecutor may properly comment on the credibility of witnesses. (People v. Richardson (1988), 123 Ill. 2d 322, 123 Ill. Dec. 908, 528 N.E.2d 612.) The trial court's determination of the propriety of the closing argument will generally be followed on appeal absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 113 Ill. Dec. 58, 175, 514 N.E.2d 970.) In reviewing allegations of prosecutorial misconduct, we must examine the closing arguments of both sides in their proper context. People v. Cisewski.

Defendant contends the prosecutor misstated the law by telling the jury during his rebuttal argument that it had to totally disbelieve the State's witnesses in order to believe defendant's two alibi witnesses. The prosecutor argued:

"* * * Why would they lie? Why would Mr. Hassan and Mr. Ivy lie. What motive do they have to lie? There is none, because they are not lying. They know it's him. They identified him.

This person who came into court on behalf of the defendant and told you where the defendant was on that particular day and time, at that particular time, I don't know, I don't like calling anybody a liar. I just don't like doing it. Maybe he's mistaken. But his mother * * * testified that he got there to his house * * * at 9:15 in the morning * * *. This armed robbery took place at a quarter to 9:00 in the morning.

Mr. Elmore isn't lying. Maybe he was there in the morning. Could he be ten minutes, fifteen minutes off? To believe Mr. Elmore's times, okay, you have to totally disbelieve Mr. Hassan and Mr. Ivy. You have to say I'm sorry—

* * * * * *

[— we] don't believe Mr. Hassan and Mr. Ivy."

Although defendant properly objected at the time these comments were made, the objection was overruled and defendant failed to include the point in his post-trial motion, and thus was waived. (People v. Enoch.) While defendant argues it was plain error, we have already found that the evidence was not closely balanced here. See People v. Smith (1991), 209 Ill.App.3d 1043, 154 Ill. Dec. 482, 568 N.E.2d 482 (plain error rule does not apply to question of whether prosecutor's argument regarding defendant's lying was error, since evidence was not closely balanced and comment did not deny defendant a fair trial).

Furthermore, even in the absence of defendant's waiver, we would find that no reversible error occurred.

Defendant argues that to accept the alibi defense the jury need not have "totally disbelieved" Hassan and Ivy or found they were lying. Instead, since the defense did not contest that a robbery took place, the jury could simply find that Hassan and Ivy "were merely mistaken as to identity."

Hassan and Ivy testified that the robbery took place at 8:45 a.m.; defendant does not contest this time. The dispute concerns only whether their identification of defendant was accurate. The prosecutor, therefore, was telling the jury that to believe Elmore's testimony that defendant was in his living room when he woke up at 6:30 a.m., until he brought defendant home at 9:15 a.m., the jury must disbelieve the testimony of Hassan and Ivy that defendant was robbing the store at 8:45 a.m. that day.

In some cases, a jury may believe in the sincerity of the State's witnesses, yet still acquit defendant. For example, in People v. Cole (1980), 80 Ill.App.3d 1105, 36 Ill. Dec. 351, 400 N.E.2d 931, the court found it was error for a prosecutor to argue that an acquittal is equivalent to a declaration that the State's witnesses had lied. Thus, courts have distinguished cases where the "contradiction could possibly be due to a witness' mistake, as opposed to when the contradiction was almost certainly due to a witness lying." (People v. Smith (and cases cited therein).) In Cole, identification was a contested issue. Because the witnesses may have just been mistaken, and not deliberately lying, the jury could acquit defendant without finding the State's witnesses had lied. Cole, 80 Ill.App.3d at 1108, 36 Ill. Dec. 351, 400 N.E.2d 931. See also People v. Ridley (1990), 199 Ill.App.3d 487, 145 Ill. Dec. 608, 557 N.E.2d 378 (improper to tell jury that in order to believe the defense witnesses, it must find that the State witnesses were lying, where defendant had offered an alibi defense and tried to convince the jury that he was mistakenly identified; "[t]his is not a case where the testimony of the defense witnesses directly contradicted the testimony of the State witnesses"). Cf. People v. Roman (1981), 98 Ill.App.3d 703, 705-06, 54 Ill. Dec. 44, 424 N.E.2d 794 (distinguishing Cole; here, identification was not an issue).

Unlike the present case, in Cole the prosecutor told the jury that to convict the defendant, the jurors had to find that the witnesses were lying. This court has held that no error occurs unless the State actually tells the jurors that, "in order to acquit defendant, the jury had to find that the State's witnesses were lying." (People v. Malone (1991), 211 Ill.App.3d 628, 156 Ill. Dec. 108, 570 N.E.2d 584; People v. Siefke (1990), 195 Ill.App.3d 135, 141 Ill. Dec. 833, 551 N.E.2d 1361 (distinguishing Cole); People v. Smith (distinguishing Cole).) The simple avoidance of this ultimate admonition, of course, does not validate the State's focus on the basic credibility of the State's witnesses, although it may enter into a determination of the extent to which the statement prejudiced defendant. Moreover, any possibility of prejudicial impact was minimized when the prosecutor expressly distinguished between a lie and an honest mistake in describing Elmore's testimony in the same context in which he discussed the credibility of his own witnesses. The key is to review the comment in context. Although the State treated the matter as if the acceptance of Elmore's testimony required a rejection of the testimony of the State's witnesses—as though they were "lying"—this impression was significantly diluted by the State's argument that Elmore himself might simply be mistaken. Consequently, the comment did not rise to the level of prejudicial error.

In any event, any error would be harmless where the jury was properly instructed that closing arguments are not evidence and any argument made by counsel not based on the evidence should be disregarded. Such instructions would have cured any prejudice to the defendant. See People v. Smith (1991), 209 Ill.App.3d 1043, 154 Ill. Dec. 482, 568 N.E.2d 482.

Defendant also points to the prosecutor's closing argument suggesting that the customer who walked in during the middle of the robbery, and the informant named "Tyrone," did not testify because they were frightened of defendant.

Defense counsel argued in his closing argument at trial that the State had failed to call as witnesses either the unnamed customer who entered the store during the robbery, or Tyrone, the informant who told Hassan that the robber was called "Snake" and lived at 48th and Langley. The prosecutor then argued in rebuttal:

"* * * Where is this person who walked in and walked out, where is the person, Tyrone, that tries to help Mr. Hassan? Again, this is the real world. This isn't television and he wants you to believe it is. That certain things are always done. Where are these people? Ladies and Gentlemen, let me tell you something. This attorney as well as myself, has the power of subpoena.

* * * * * *

But you know, Ladies and Gentlemen, people don't want to get involved. They don't want to get involved. We are plagued with that. We are.

Anybody who ever walks in that grocery store took off, especially when the defendant pointed a gun and told them to get out of here, as you heard the witnesses testify to.

Of course this guy Tyrone, from the neighborhood is not going to want to get involved. He doesn't want to get involved. They are afraid. Don't you think for a minute that they are not afraid? That they are not afraid of this man?"

No objection was made to the comment regarding defendant frightening potential witnesses, and thus here to the issue is waived (Enoch), and as we discussed above, the plain error rule will not be applied here because the evidence is not closely balanced. See People v. Moore (1991), 215 Ill.App.3d 836, 159 Ill. Dec. 977, 576 N.E.2d 900 (plain error rule not applied where State's arguments that defendant "knew he could frighten these people to never talk" did not deny him a fair trial and could not reasonably have affected the verdict; three eyewitnesses identified defendant, notwithstanding the fact that defendant's identification and much of the evidence was "vigorously attacked"); People v. Ayala (notwithstanding alleged error that prosecutor argued that witnesses were afraid to come to court, court finds plain error rule does not apply where evidence was not closely balanced; two victims gave eyewitness account and strong identification testimony, their testimony was not impeached and the case was not otherwise complicated by conflicting evidence).

However, we go on to discuss the merits of the issue, notwithstanding defendant's failure to object at trial.

Defendant argues that there was no evidence to suggest that any potential witnesses had been frightened away from court by defendant. We agree.

However, there is some validity to the State's argument that this crime involved the use of a deadly weapon and any "rational person would have reservations" about testifying in "a case such as this, especially since defendant was a neighbor of Tyrone's." Moreover, the comment does not specifically point to defendant as the instigator of the fear; however, the implication is not entirely hidden. The State argues that the comment was "a proper reference to the evils of crime" because the crux of the point was that witnesses "generally do not want to come forward" due to "a general fear of crime and being victimized by criminals." See People v. Thompkins (1988), 121 Ill. 2d 401, 445, 117 Ill. Dec. 927, 521 N.E.2d 38 (court found prosecutor's comments regarding witnesses' fear of testifying were proper because comments derived from testimony in the record); People v. Hynes (1962), 26 Ill. 2d 472, 476, 187 N.E.2d 252 (same).

Defendant relies on People v. Mullen (1990), 141 Ill. 2d 394, 152 Ill. Dec. 535, 566 N.E.2d 222, where the court found reversible error where the prosecutor commented on a witness who initially testified that he "did not want to answer" and the prosecutor argued that people "do not want to get involved. Why don't they want to get involved? They do not want one of these (indicating) in their back." The court found that the argument "clearly suggests that defendant threatened or intimidated witnesses so they would not testify against him." The court reversed and remanded for a new trial based on this error alone, where there was no evidence that any witness was afraid at the time of trial. (Mullen, 141 Ill. 2d 394, 152 Ill. Dec. 535, 566 N.E.2d 222.) See also People v. Johnson (1990), 202 Ill.App.3d 417, 147 Ill. Dec. 701, 559 N.E.2d 1041 (reversible error to argue that persons who identified defendant to police did not testify as result of fear); People v. West (1971), 3 Ill.App.3d 106, 119-20, 278 N.E.2d 233 (reversible error to argue witness had been beat up and "who knows what will happen after this trial").

In Mullen, however, the arguments were made despite the trial judge's express instructions that the attorneys refrain from commenting on the witness' initial reluctance to testify. Moreover, in Mullen, the fear factor was accentuated in that the jury was aware of the witness' reluctance to testify since he had first taken the stand and refused to answer questions.

We find that the possibility of prejudicial impact was minimized by the fact that the prosecutor did not attribute the absent witness's fright to this specific defendant. The comment can be viewed as a comment on the diffused fear of witnesses reluctant to involve themselves in an armed robbery case. (See People v. Moore (distinguishing Mullen; finding any prejudice was harmless, where the comment "did not relate to anything the jury had perceived; no witnesses appeared to have been so intimidated, and the effect on [defendant's] trial was harmless"); People v. West, 3 Ill.App.3d at 119-20, 278 N.E.2d 233.); People v. Acker (1970), 127 Ill.App.2d 283, 296, 262 N.E.2d 247: People v. Trice (1970), 127 Ill.App.2d 310, 319, 262 N.E.2d 276; Moreover, we further point to the fact that in any event any error would be harmless, as previously stated, because the evidence is overwhelming.

Defendant next challenges the constitutionality of the Habitual Criminal Act. He did not raise the issue below, and thus has waived it for review; however, the constitutionality of a statute may be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 132 Ill. Dec. 415, 539 N.E.2d 1221; People v. Morissette (1986), 150 Ill. App. 3d 431, 103 Ill. Dec. 464, 501 N.E.2d 781.

The Habitual Criminal Act provides in part:

"Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder committed after the two prior convictions, shall be adjudged a habitual criminal." (Ill.Rev.Stat.1983, ch. 38, par. 33B-1.)

The third offense must be committed after the July 3, 1980 effective date of the Act, and within 20 years of the date that judgment was entered on the first conviction, not including time spent in custody. The third offense must have been committed after conviction on the second offense; and the second offense must have been committed after conviction on the first offense. Ill.Rev.Stat.1983, ch. 38, par. 33B-1.

Defendant does not challenge the fact that he falls within the criteria set forth in the Act. Defendant here committed his third offense on July 16, 1984, which is within 20 years of the first Class X felony (armed robbery) conviction in 1977. The third offense was committed after the second Class X felony (armed robbery) conviction in 1980; and the second offense was committed after the first conviction.

The constitutionality of this Act has been repeatedly upheld against identical attacks, and we find no reason for reconsideration of these holdings. See, e.g., People v. Cardenas (1991), 209 Ill.App.3d 217, 154 Ill. Dec. 102, 568 N.E.2d 102; People v. Shriner (1990), 198 Ill.App.3d 748, 144 Ill. Dec. 738, 555 N.E.2d 1257; People v. Franzen (1989), 183 Ill.App.3d 1051, 132 Ill. Dec. 808, 540 N.E.2d 548; People v. Westefer (1988), 169 Ill.App.3d 59, 119 Ill. Dec. 522, 522 N.E.2d 1381; People v. Glover (1988), 173 Ill.App.3d 678, 684, 123 Ill. Dec. 330, 527 N.E.2d 968; People v. Mays (1988), 176 Ill.App.3d 1027, 127 Ill. Dec. 14, 532 N.E.2d 843; People v. Cannady (1987), 159 Ill. App. 3d 1086, 111 Ill. Dec. 872, 513 N.E.2d 118; People v. Morissette (1986), 150 Ill. App. 3d 431, 103 Ill. Dec. 464, 501 N.E.2d 781; People v. Washington (1984), 125 Ill. App. 3d 109, 117, 80 Ill. Dec. 554, 465 N.E.2d 666; People v. Washington (1984), 125 Ill. App. 3d 109, 80 Ill. Dec. 554, 465 N.E.2d 666; People v. Withers (1983), 115 Ill.App.3d 1077, 71 Ill. Dec. 444, 450 N.E.2d 1323.

Defendant relies heavily on Solem v. Helm (1983), 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637, where the Court set aside a sentence of life imprisonment without possibility of parole, imposed under a South Dakota recidivist statute for successive offense, as a violation of the Eighth Amendment. However, recently Solem v. Helm was expressly overruled in Harmelin v. Michigan (1991), ___ U.S. ___, 111 S. Ct. 2680, 115 L. Ed. 2d 836, where the Court upheld the constitutionality of the Michigan recidivist statute. It held: "We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." (Harmelin v. Michigan, 111 S.Ct. at 2686.) The term "cruel and unusual" under the Eighth Amendment has no connection to the particular offense. Harmelin v. Michigan, 111 S.Ct. at 2693.

In rejecting the idea that the Eight Amendment is concerned with rehabilitation, the Court went on to state that "it becomes difficult even to speak intelligently of ``proportionality,' once deterrence and rehabilitation are given significant weight." (Harmelin, 111 S.Ct. at 2698.) The Court rejected the argument that it is cruel and unusual to impose a mandatory sentence of such severity "without any consideration so-called mitigating factors." (Harmelin, 111 S.Ct. at 2701.) The Court stated: "As our earlier discussion should make clear, this claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense * * *." (Harmelin, 111 S.Ct. at 2701.) Moreover, a mandatory life sentence without possibility of parole "cannot be compared with death" because there "remain the possibilities of retroactive legislative reduction and executive clemency." Harmelin, 111 S.Ct. at 2702.

We agree with these opinions, which hold that the Act does not violate the ex post facto clauses or the double jeopardy clauses.

For the foregoing reasons, we affirm the judgment and sentence of the circuit court of Cook County in all respects except as to the court's ruling on the issue of the State's discriminatory use of peremptory challenges. Regarding that issue, we remand the case to the circuit court for a hearing on the present record and any additional record on that issue the parties decide to make for the purpose of determining whether, pursuant to Batson, the prosecutor purposefully discriminated against blacks in exercising the peremptory challenges. In the event the circuit court finds that the prosecutor did not purposefully discriminate, the court is directed to confirm the judgment and sentence. If the court finds that the prosecutor did purposefully discriminate, the court is directed to order a new trial. See People v. Johnson, 162 Ill.App.3d at 17, 113 Ill. Dec. 840, 515 N.E.2d 825; People v. McEwen, 157 Ill. App.3d at 230-31, 109 Ill. Dec. 453, 510 N.E.2d 74.

Judgment affirmed; cause remanded with directions.

MURRAY and McNULTY, JJ., concur.