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People v. Coulter

Case Date: 03/30/2001
Court: 1st District Appellate
Docket No: 1-99-0432 Rel

SIXTH DIVISION
March 30, 2001




No. 1-99-0432



THE PEOPLE OF THE STATE OF ILLINOIS,

                    Plaintiff-Appellee,

          v.

DWAYNE COULTER,

                    Defendant-Appellant.

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)		 Appeal from the
Circuit Court of
Cook County



Honorable
Colleen McSweeney-Moore,
Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court:

In 1987, a jury convicted defendant Dwayne Coulter, an African-American, of first degreemurder in the death of Michael Ridges, a white Prospect Heights police officer, and of conspiringwith three other men to kill Robert Fischer. Defendant was sentenced to natural lifeimprisonment. The instant action follows a previous appeal in which this court held that underBatson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), defendant hadestablished a prima facie case of racial discrimination in the selection of the jury that convictedhim. However, this court affirmed defendant's conviction and sentence because the State offeredrace-neutral and legitimate explanations for using its peremptory challenges to strike thosepotential jurors. People v. Coulter, 230 Ill. App. 3d 209, 229, 594 N.E.2d 1163, 1176 (1992)(Coulter I). Defendant filed a petition in federal district court for a writ of habeas corpus. Thatcourt found the State's explanations as to two prospective jurors "implausible" and that the Stateimproperly used its peremptory challenges almost entirely to strike African-American jurors. United States ex rel. Coulter v. Gramley, 945 F. Supp. 1138, 1143 (N.D. Ill. 1996). The SeventhCircuit Court of Appeals modified the district court's opinion and remanded to the state trialcourt for a new Batson hearing. Coulter v. Gilmore, 155 F.3d 912, 922 (7th Cir. 1998).

Following such a hearing, the trial court found that no Batson violation occurred. In thisappeal, defendant contends that in the hearing, the State failed to meet its burden ofdemonstrating race-neutral explanations for its peremptory challenges and that the trial courtfailed to comply with the Seventh Circuit's instructions in Coulter v. Gilmore, among otheralleged errors. Defendant also contends in a supplemental brief that the imposition of a lifesentence upon the trial judge's finding of an aggravating factor violates Apprendi v. New Jersey,530 U.S. ____, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because we find that the trial courtconducted a sufficient review of defendant's Batson claims and we find defendant's othercontentions to be without merit, we affirm defendant's convictions and sentence.

The following facts are taken from the record on appeal, our opinion in Coulter I and thesubsequent federal court proceedings. Prior to jury selection for defendant's trial, the courtordered that in light of the United States Supreme Court's then-recent decision in Batson, theprosecution and the defense would be required to offer reasons in camera for their peremptorychallenges as each challenge was sought. Of the 10 peremptory challenges that the Stateexercised, 9 were used to excuse African-American venirepersons. The relevant voir diretestimony of those nine individuals is detailed below. Eight whites, one Hispanic and threeAfrican-Americans served on defendant's jury. Two African-Americans were alternate jurors.


African-American Venirepersons Excused by the State's Peremptory Challenges

April Rhem was single and worked for two months at a temporary employment agency. Before that, she was an accounting clerk at Kraft Foods for seven months, a sales clerk atMarshall Field's for four months, and an office worker at Roosevelt University for three months. She attended Roosevelt for the previous three years as a finance major. Because it was possiblethat defendant would invoke an insanity defense, Rhem was asked if any family member hadbeen treated by a psychiatrist, psychologist or mental health worker or if any friends or relativeswere employed in that field. Rhem replied no to both questions. The State challenged her,stating that she had four different jobs in the last year. The defense argued that she was a studentand should not be excluded for her employment record.

Marcina Adams stated that she was a licensed practical nurse and worked at WestshireRetirement Center. None of her family members had been treated for mental health problems,and she did not have friends or relatives employed in that field. The State contended she shouldbe excused because of the medical testimony involved should an insanity defense be mounted.

Teresa Brantley stated that she was unemployed for the last 10 years, and before that, hadworked at the post office for three months and at the Clock Factory for a month. The Statesuccessfully challenged her based upon her record of unemployment.

Jeanell Hicks stated that she was single and had worked at Mickey's Linen for threemonths. She previously worked for Oxford Speakers for six years and at Brown Motors for fiveyears. Hicks stated that her mother's home was burglarized 25 years ago. She said none of her family members or friends had been treated for a mental health condition and no friends orrelatives worked in that field. The State initially challenged Hicks because she indicated on herresponse card that she had been involved in an auto accident with injuries. The trial court asked,"What if she doesn't have a pending lawsuit?" The State responded, "Well, if not, she seemedvery timid and was real hesitant in answering your questions, and we think that that's enough toexercise our peremptory challenge on." Subsequent questioning of Hicks revealed that she didnot have a pending case.

Melvin Igess stated that he had been unemployed for about a year after working at AbleInventory for seven or eight months. Before that, he worked at a gas station for about a year. Igess had fathered one child with one woman and two children with another woman. The Statesuccessfully excused him, stating that he had "three children by two different women" and hadbeen unemployed for about a year.

Melanie Pinkins stated that she had been a salesperson at a retail store for about threeyears. When asked where she lived, Pinkins said she lived with her mother, who worked atMercy Hospital as a social worker for older patients. The State moved to excuse Pinkins becausea doctor who was affiliated with Mercy Hospital earlier in his career had testified at a fitnesshearing that defendant was fit to stand trial. When the defense asked that Pinkins be questionedas to what years her mother worked at Mercy, the court replied that Pinkins was excused.

Anthony Powe stated that his brother had been convicted of armed robbery several yearsearlier. In a sidebar, the State told the court that Powe previously had been charged with a crime.

Kevin Archibald stated that while attending Southern Louisiana University, schoolofficials contended that he owed money to the school. Archibald stated that the school took himto court in a civil case but that he was never charged with a crime. In a sidebar, the State assertedthat he had been charged with theft in Illinois.

Edward Terry stated that he had "some problems" with the death penalty and "wouldn'twant to have to make a decision" but thought he "could follow the law." The State challengedhim based upon those statements.



Procedural History

Following defendant's conviction and sentencing, a lengthy procedural history ensued thathas resulted in the present appeal. After defendant first appealed his conviction in 1990, thiscourt remanded to the trial court for clarification of the record concerning jury selection and forany necessary further proceedings pursuant to People v. Hope, 137 Ill. 2d 430, 560 N.E.2d 849(1990), vacated, Hope v. Illinois, 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792 (1991). This court retained jurisdiction over the appeal pending completion of that supplemental hearingand argument on the Batson issue, in accordance with People v. Garrett, 139 Ill. 2d 189, 194-95,564 N.E.2d 784, 787 (1990). On remand, after hearing arguments from the parties, the trial courtstated that defendant had not established a prima facie case of discrimination, and even haddefendant done so, the State offered racially neutral reasons for its peremptory challenges. Defendant filed a motion to reconsider in which defense counsel responded to the reasons theState gave for its challenges. That motion was denied.

This court then reviewed those proceedings and found that defendant had set forth aprima facie case of discrimination. Coulter I, 230 Ill. App. 3d at 224, 594 N.E.2d at 1173. However, the court reviewed the reasons the State offered in the original voir dire in challengingnine of the African-American venirepersons. The court concluded that, based upon the record,defendant had failed to prove that the trial court's determination that no intentional discriminationoccurred was clearly erroneous. Coulter I, 230 Ill. App. 3d at 229, 594 N.E.2d at 1176. Thecourt affirmed defendant's conviction and sentence. Coulter I, 230 Ill. App. 3d at 230, 594N.E.2d at 1177.

After the Illinois Supreme Court denied his petition for leave to appeal, defendant filed apro se petition for a writ of habeas corpus in the United States District Court for the NorthernDistrict of Illinois. The district court initially denied defendant's petition on procedural grounds. However, the Seventh Circuit reversed that decision and remanded for consideration of themerits of defendant's Batson claim. Coulter v. Gramley, 93 F.3d 394, 397 (7th Cir. 1996).

On remand, the district court found that the evidence presented to the trial courtestablished that the State discriminated against African-Americans in exercising its peremptorychallenges. Coulter v. Gramley, 945 F. Supp. at 1143. The district court specifically noted that 9of the 10 challenges used by the State were directed at African-American venirepersons, statingthat "[t]his fact by itself is compelling evidence of discrimination." Coulter v. Gramley, 945 F.Supp. at 1142. The court also stated that the State's voir dire questions suggested discriminatoryintent, and that the almost-exclusive use of challenges against African-Americans, coupled withthe prosecution's "implausible" explanations regarding Igess and Adams, represented"overwhelming evidence of discriminatory state action." Coulter v. Gramley, 945 F. Supp. at1143.

The Seventh Circuit affirmed the district court's opinion but ordered the state trial court tohold a new hearing on defendant's Batson claim.(1) Coulter v. Gilmore, 155 F.3d at 922. Thecourt reviewed the three-part Batson analysis, which starts with a defendant's establishment of aprima facie case of purposeful discrimination. To meet that prima facie case, a defendant mustshow that (1) he or she was a member of a cognizable racial group; (2) the prosecutor exercisedperemptory challenges to remove members of the defendant's race from the venire; and (3)sufficient facts and circumstances existed to raise an inference that the prosecution used theperemptory challenges to exclude venire members on the basis of race. Batson, 476 U.S. at 96,90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723. If the defendant meets those requirements andestablishes a prima facie case, the burden shifts to the government to articulate race-neutraljustifications for striking the venirepersons at issue; those reasons must be clear, reasonablyspecific and related to the case at bar. Batson, 476 U.S. at 97-98 & n. 20, 90 L. Ed. 2d at 88 & n.20, 106 S. Ct. at 1723-24 & n. 20. If the government meets that burden, the trial court mustdetermine if the defendant established purposeful discrimination. Batson, 476 U.S. at 98, 90 L.Ed. 2d at 88-89, 106 S. Ct. at 1724.

The Seventh Circuit found that the trial judge's procedure of having the prosecution anddefense each compile a list of challenges, as opposed to allowing each side to exercise itschallenges unless an objection was raised, circumvented the stage at which the defendant couldobject to the State's use of peremptory challenges. Coulter v. Gilmore, 155 F.3d at 918. Therefore, defendant was not provided the proper forum to establish a prima facie case ofpurposeful discrimination based upon race. Coulter v. Gilmore, 155 F.3d at 918. The SeventhCircuit agreed with this court's finding in Coulter I that defendant established a prima facie caseof discrimination. Coulter v. Gilmore, 155 F.3d at 919. Upon such a prima facie showing, thecourt noted, Batson shifted the burden to the State to produce a legitimate, race-neutralexplanation for challenging each African-American juror. The court stated that venire membersPowe, Archibald and Terry were excused for "plainly race-neutral and legitimate" reasons (Poweand Archibald's failure to disclose previous criminal charges against them and Terry's uneasewith the death penalty). Coulter v. Gilmore, 155 F.3d at 919-20. The court found the challengesagainst Brantley (10 successive years of unemployment), Adams (training as nurse could affectweighing of insanity evidence), Pinkins (mother worked at same hospital as potential defensewitness, although no testimony that tenures coincided) and Rhem (attended night school and heldfour different jobs in the previous year) to be race-neutral and "plausibly legitimate." Coulter v.Gilmore, 155 F.3d at 919-20.

The Seventh Circuit expressed skepticism about the State's explanations for strikingHicks ("timid and hesitant" in answering the trial judge's voir dire questions) and Igess (had threechildren by two different women and had been unemployed for about a year). Coulter v.Gilmore, 155 F.3d at 919-20. However, the court stated that the trial court had prematurelyconsidered the justifications offered by the State. The court noted that not until the third stage ofBatson, when the trial court determines whether a defendant has carried his burden of provingintentional discrimination, are the justifications behind the challenges to be examined and foundto be either pretextual or legitimate. Coulter v. Gilmore, 155 F.3d at 920. The court recognizedits limited ability to review the state court's findings as to whether the prosecution's reasons werepretextual, noting that it was "simply impossible for us to tell from the cold record."(2) Coulter v.Gilmore, 155 F.3d at 920.

The Seventh Circuit stated that the trial court failed to consider the totality of thecircumstances and therefore did not assess the similarities between non-minority venire memberswho were not struck and minority venire members who were excused. Coulter v. Gilmore, 155F.3d at 921. Specifically, the court mentioned white venirepersons whom the court contendedwere similarly situated to Pinkins (who had been challenged because her mother had worked atsame hospital as potential defense witness) and Adams (challenged because her training as anurse could affect weighing of insanity evidence) who were not excused, even though onenonstricken venire member's wife was a registered nurse and another venire member's father hadbeen treated for severe depression. Coulter v. Gilmore, 155 F.3d at 921. The Seventh Circuitordered that defendant would be released unless within 120 days the state trial court held a newBatson hearing "at which the proper methodology for evaluating his claim is followed,"specifically that "in addition to reviewing the reasons given for striking each individualprospective juror, [the trial court] considers the totality of the circumstances and compares theprosecutor's strikes against African-Americans against its treatment of similarly situatedCaucasians." Coulter v. Gilmore, 155 F.3d at 922.

The Trial Court's Batson Hearing on Remand

In December 1998, the trial court reviewed defendant's Batson claims. (The judgepresiding over that hearing did not preside at defendant's trial.) The State apprised the trial courtof the reasons the prosecution had offered the trial judge for excusing the nine African-Americanvenire members in question. The trial court noted the Seventh Circuit's observations in Coulterv. Gilmore that the proffered reasons for challenging Hicks and Igess were questionable. Thejudge stated that she would "consider all of the reasons for all of the nine challenged jurors by theState under a totality of the circumstances test in determining the credibility of those reasonsgiven," also noting that she had read the transcripts of the original jury selection as well as theopinions in Coulter I and Coulter v. Gilmore.

The court first noted the racial breakdown of the venire as a whole, compared with theraces of those actually selected as jurors, and stated that of the 55-member venire, 16 members,or approximately 29%, were African-American. Three African-Americans served on the 12-person jury, with 2 African-Americans selected as alternates. The court calculated that 35% ofthe jury (including the alternates) was African-American, a figure that the court noted was"certainly much higher" than the number of African-Americans in the venire or "much higherthan the percentage of blacks in the Cook County area."

The court also noted that while 9 of the 10 challenges exercised by the State were used tostrike African-American venire members, the defense used 13 of its challenges to excuse whites. While the court found that statistic relevant under Georgia v. McCollum, 505 U.S. 42, 59, 120 L.Ed. 2d 33, 51, 112 S. Ct. 2348, 2359 (1992) (holding that criminal defendants cannot engage indiscrimination on the grounds of race in exercising their peremptory challenges, but mustarticulate racially neutral explanations), the court stated that it did not consider the defense's useof its challenges to be dispositive under McCollum, but that it was only noted "for the purpose ofshowing the level of competence of the attorneys on both sides" and to show that the State anddefense were "merely advocating their respective positions."

The court stated that the excusal of Hicks based upon her demeanor was legitimate andrace-neutral because it was foreseeable that the prosecution "would want as a juror someone whowas strong, stable *** sure of their convictions and willing to follow them." Regarding Igess, thecourt stated that although Igess had been asked if his children had different mothers, theprosecution sought to exclude him because he had been unemployed for almost a year and beforethat "had several jobs *** each of which only lasted for a few months." The court said that theState might have sought a "more stable, working" person as a juror. The court noted that duringjury selection, the defense made no attempts to rebut those stated reasons on the record.

In addition, the judge commented on the credibility of the two prosecutors at defendant'strial, one of whom she knew personally. The court found that, based upon the totality of thecircumstances, the reasons articulated for the nine African-American jurors excused by the Statewere race-neutral, legitimate, credible and not pretextual.


Analysis

We initially address the State's motion to dismiss defendant's appeal. The State contendsthat only the Seventh Circuit, and not this court, can determine whether the state trial courtfollowed the Seventh Circuit's instructions in Coulter v. Gilmore. The State fails to cite case lawin support of this argument. As defendant notes, Illinois courts of appeal previously havereviewed whether a circuit court decision has complied with a directive from a federal court. See, e.g., People v. Emerson, 189 Ill. 2d 436, 464-467, 727 N.E.2d 302, 319-20 (2000) (holdingthat trial court's commencement of sentencing proceedings within 120-day period mandated bySeventh Circuit was "reasonable interpretation of the federal district court order"). The State hasfailed to persuade this court that it cannot review the actions of the trial court in this case. Therefore, the motion to dismiss defendant's appeal is denied.

On appeal, defendant contends that the State failed to meet its burden of showing thatlegitimate and race-neutral explanations existed for each peremptory challenge. As furtherevidence of discrimination, defendant refers to the racial makeup of the venire and the jury andthe State's consistent use of its challenges against African-Americans. Defendant also contendsthat the trial court improperly focused on the defense's exercise of peremptory challenges andthat the judge relied on her personal opinion of the prosecutors' integrity. Defendant seeks a newtrial or, in the alternative, that this court remand the case to the trial court for another Batsonhearing.

Defendant asserts that "in direct contravention to the Seventh Circuit's directive," the trialcourt failed to fully scrutinize the State's challenges to the excused African-Americanvenirepersons or compare them with their nonminority counterparts who were not challenged. We note that it is not the task of this court to analyze the trial court's actions in the wake of theSeventh Circuit's opinion in Coulter v. Gilmore. The Seventh Circuit exercises no appellatejurisdiction over state courts, and therefore the decision of that court is not conclusive to ouranalysis. See People v. Eyler, 133 Ill. 2d 173, 225, 549 N.E.2d 268, 291 (1989). While thesupreme court notes in Eyler that a decision of a federal court may become the "law of the case,"and may therefore be binding upon state courts in subsequent proceedings (Eyler, 133 Ill. 2d at225, 549 N.E.2d at 291), the instant case was not remanded with substantive factual findings bythe Seventh Circuit, but instead with the procedural direction that another Batson hearing be heldwith a "totality of the circumstances" analysis performed. We therefore reject at the outsetdefendant's assertions throughout his appeal that the trial court was required to state certain factson the record or perform an analysis as mandated by the Seventh Circuit.

The role of this court is to determine whether the trial court properly reviewed defendant'sBatson claims. As discussed previously, in order to establish a prima facie of purposefuldiscrimination in jury selection under Batson, a defendant must first show that (1) he or she wasa member of a cognizable racial group; (2) the prosecutor exercised peremptory challenges toremove members of defendant's race from the venire; and (3) sufficient facts and circumstancesexisted to raise an inference that the prosecution used the peremptory challenges to excludevenire members on the basis of race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at1723. If a defendant meets those requirements, the burden shifts to the State to articulate race-neutral justifications for striking the venirepersons at issue; those reasons must be clear,reasonably specific and related to the case at bar. Batson, 476 U.S. at 97-98 & n. 20, 90 L. Ed.2d at 88 & n. 20, 106 S. Ct. at 1723-24 & n. 20. While such a justification "need not rise to thelevel justifying exercise of a challenge for cause," the State must not offer a challenge basedmerely on the assumption that a particular juror would be "partial to the defendant because oftheir shared race." Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; see alsoHope, 137 Ill. 2d at 454, 560 N.E.2d at 859-60. If the State offers specific and race-neutraljustifications, the third stage of Batson arises, in which the trial court determines if the defendanthas established purposeful discrimination. In Batson, the Supreme Court noted that since thetrial judge's findings at that stage rest upon credibility determinations, "a reviewing courtordinarily should give those findings great deference." Batson, 476 U.S. at 98 n. 21, 90 L. Ed. 2dat 89 n. 21, 106 S. Ct. at 1724 n. 21. The initial determination of the legitimacy of the State'soffered explanation for a peremptory challenge rests with the trial court and involves anassessment of credibility to which a reviewing court defers unless against the manifest weight ofthe evidence. People v. Britt, 265 Ill. App. 3d 129, 134-35, 638 N.E.2d 282, 287 (1994). Thetrial court's factual findings will be set aside only if clearly erroneous. People v. Hope, 147 Ill.2d 315, 321, 589 N.E.2d 503, 506 (1992).

Defendant contends that the State failed to meet its burden of showing that legitimate andrace-neutral explanations existed for each peremptory challenge. Defendant argues that thereasons the State offered for striking Rhem, Hicks, Pinkins, Igess, Adams and Brantley werepretextual, and that the latter four venire members were similarly situated to nonminorityvenirepersons whom the State did not excuse.(3) Defendant's contentions that two nonminorityvenire members were similarly situated to Pinkins are raised for the first time in this appeal. Rulings on issues that could have been raised in the original proceedings, but were not, aredeemed waived. People v. Enoch, 146 Ill. 2d 44, 50, 585 N.E.2d 115, 118 (1991). Therefore, nofactual basis existed for the trial court to perform a "similarly situated analysis" as to Pinkins. Inaddition, although the Seventh Circuit in Coulter v. Gilmore pointed out white venire membersthat it claimed were similarly situated to Adams, the trial court on remand was not bound toabide by that court's views in engaging in its "totality of the circumstances" analysis. RegardingIgess and Hicks, the trial judge reviewed on the record the reasons that the State offered forstriking them and found them to be not pretextual, and as to Rhem and Brantley, the trial court'sfailure to specifically mention their cases is not fatal.

Defendant asserts that at the third stage of a Batson hearing, the trial judge must makespecific findings of fact regarding the State's explanations for excluding a venire member. Heargues that because the court did not list and review on the record the reasons pertaining to eachexcluded African-American venire member at issue, a remand is required. Defendant citesPeople v. Harris, 129 Ill. 2d 123, 187, 544 N.E.2d 357, 385 (1989), in which the supreme court,when remanding the case to the trial court for a Batson hearing, instructed the court "to makeappropriate findings of fact and conclusions of law." Harris, 129 Ill. 2d at 187, 544 N.E.2d at385. Such a mandate did not occur in this case, and even if it did, such an exhaustive finding isnot required in all cases. In People v. Fair, 159 Ill. 2d 51, 76, 636 N.E.2d 455, 469 (1994), thesupreme court rejected a defendant's argument that the trial judge erred by failing to makedetailed factual findings for each challenged Batson strike, instead stating that the judge's generalassertions were "sufficiently specific."

In this case, the trial judge listened to the State reiterate its reasons for striking eachAfrican-American venire member. Noting that the Seventh Circuit's opinion specificallymentioned Hicks and Igess, the judge stated that she would "consider all of the reasons for all ofthe nine challenged jurors by the State under a totality of the circumstances test." The trial judgesummarized her findings by noting a number of factors that she considered in assessingdefendant's claims. We find nothing deficient in the manner in which the trial court conducteddefendant's Batson hearing on remand, under a "totality of the circumstances" evaluation.

Defendant also argues that the trial court failed to take into account that the State used allbut one of its peremptory challenges to strike African-American venirepersons. As previouslydiscussed, the trial court indicated that the relevant circumstances were considered, and thejudge's failure to list those reasons explicitly is not fatal. A "pattern of strikes" against veniremembers of the same race as defendant is a relevant circumstance in assessing whether adefendant has established a prima facie case of discrimination. Coulter I, 230 Ill. App. 3d at222-23, 594 N.E.2d at 1172. However, that factor, or for that matter any other single factor, isnot dispositive of defendant's case. On remand, defendant's prima facie case had already beenestablished, and as defendant acknowledges, the trial judge was making a third-stage Batsondetermination in which she assessed the genuineness and persuasiveness of the State'sexplanations for striking particular jurors. Therefore, the number of strikes used against minorityvenire members was not the primary consideration at that stage.

Defendant next claims that the trial court improperly relied upon her personal knowledgeof the prosecutors in weighing the genuine nature of the State's challenges. The judgecommented on the credibility of the two prosecutors at defendant's trial, indicating that she knewone of them personally. A trial judge's experience with local prosecutors is a relevant factor inthe assessment of a defendant's Batson claims, and a judge is permitted to draw upon his or herown opinions of prosecutors. People v. Andrews, 146 Ill. 2d 413, 427-28, 588 N.E.2d 1126,1134 (1992). Our review of the record reveals that the judge did not place undue weight on thatfactor or base her decision solely on that knowledge.

Defendant also contends that the trial judge unjustifiably focused on the defense's use ofits challenges against white jurors. Defendant cites no case law stating that a trial court'sdiscussion of that factor is detrimental to a Batson hearing. Nevertheless, the record does notindicate that the judge relied upon those observations to conclude that the State's use of itsperemptory challenges was not discriminatory. To the contrary, the judge acknowledged that theissue of reverse discrimination was not before the court. Based upon the record as a whole, thetrial court's findings that the State's reasons for striking the venire members in question werelegitimate and that defendant did not prove purposeful discrimination were not against themanifest weight of the evidence and were not clearly erroneous. Therefore, we affirm thejudgment of the trial court regarding defendant's Batson arguments.

The dissent mirrors defendant's contentions and asserts that the Seventh Circuit's opinionrequired the trial court to review the reasons given for striking each potential juror, to considerthe totality of the circumstances and to compare the strikes against African-Americans with thoseagainst similarly situated nonminority venire members. Under the dissent's view, the trial courtwas required to adopt the Seventh Circuit's findings under the "law of the case" or the doctrine ofres judicata. However, as noted above, the Seventh Circuit remanded the case for the trial courtto conduct its own Batson hearing and analyze plaintiff's claims using the "proper methodology"for Batson cases and "consider[] the totality of the circumstances." Such direction supports theconclusion that the trial court was not required to adopt the Seventh Circuit's specific views asessential to its analysis, but instead was to conduct its own hearing based upon its review of therecord. As previously discussed in this opinion, the trial judge stated in making her findings thatshe considered the totality of the circumstances. The fact that she did not outline each individualconsideration in her analysis does not weaken her ruling. See Fair, 159 Ill. 2d at 76, 636 N.E.2dat 469.

The dissent also criticizes the trial judge's comments regarding her knowledge of theprosecutors. However, while the dissent extensively quotes the trial judge's observationsregarding the original prosecutors, it agrees that under Andrews, a trial judge may consider his orher experience with prosecutors, but may not overemphasize it. Considering the record of theproceedings as a whole, the judge's observations of the prosecutors were not the overarchingconsideration in her analysis of defendant's Batson claims.

Lastly, we address defendant's contention in a supplemental brief that the imposition of alife sentence based upon a trial judge's finding of an aggravating factor violates Apprendi v. NewJersey, 530 U.S. ____, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In Apprendi, the UnitedStates Supreme Court held that any fact (other than a prior conviction) that increases the penaltyfor a crime beyond the prescribed statutory maximum must be submitted to a jury and provedbeyond a reasonable doubt. Apprendi, 530 U.S. at ____, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63.

Here, defendant was sentenced to natural life in prison after he was convicted of killing apolice officer, which was an aggravating factor under section 9-1(b)(1) of the Criminal Code of1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(1)); see also Ill. Rev. Stat. 1985, ch. 38, par.1005-8-1. Defendant argues that the trial court "made no specific finding of the basis for thesentence," and that he was not given notice that he was subject to an enhanced sentence due tothe aggravating factor. He contends that the sentencing factor was not proved to a jury beyond areasonable doubt, as Apprendi now requires, because although the jury found him eligible for thedeath penalty based upon his slaying of a police officer, the jury did not sentence him to death. Defendant asserts that under Apprendi, his sentence of natural life in prison must be vacated andhis case remanded for imposition of a sentence not to exceed 40 years pursuant to section5-8-1(a)(1)(a) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(a) (West 1994)).

In order to reach the merits of defendant's argument, we must first determine whether wecan apply Apprendi retroactively. See Teague v. Lane, 489 U.S. 288, 300, 103 L. Ed. 2d 334,349, 109 S. Ct. 1060, 1070 (1989). This court recently addressed that issue in People v. Kizer,318 Ill. App. 3d 238 (2000), holding that Apprendi does not apply retroactively to cases oncollateral review. Kizer, 318 Ill. App. 3d at 252; see also People v. Flowers, 138 Ill. 2d 218, 237-39, 561 N.E.2d 674, 681-82 (1990) (discussing need for finality in criminal trials).

Even if we were to substantively consider Apprendi's application to this case, defendantwould not prevail. The jury found defendant eligible for a death sentence, although it did notimpose such punishment, and such a finding required proof beyond a reasonable doubt. SeePeople v. West, 187 Ill. 2d 418, 445, 719 N.E.2d 664, 679 (1999) (existence of statutoryaggravating factor is necessary for finding of eligibility for death sentence; factor must be provedbeyond reasonable doubt). Therefore, the finding required by Apprendi had been made.

Accordingly, defendant's convictions and sentence are affirmed. As part of our judgment,we grant the State's request to assess defendant $100 as costs for this appeal. In addition,defendant is assessed $50 as costs for oral argument.

Affirmed.

BUCKLEY, J., concurs.

PRESIDING JUSTICE CAMPBELL, specially concurring in part and dissenting in part:

I agree that this court has jurisdiction over this appeal. I also agree that defendant cannotprevail on his Apprendi claim. The facts supporting his sentence were submitted to and found bythe jury beyond a reasonable doubt, and the defendant had pretrial notice that the State was seeking to prove them. Given this record, there is no need to definitively rule on the retroactivity ofApprendi. That issue will almost certainly be raised in later cases in a clearer procedural posture.

More significantly, the majority opinion's premise that neither the trial court nor this courtis bound in these proceedings by the Seventh Circuit's opinion in Coulter v. Gilmore, 155 F.3d912 (7th Cir. 1998) is untenable. The majority opinion admits that in People v. Emerson, 189 Ill.2d 436, 464-67, 727 N.E.2d 302, 319-20 (2000), the issue was whether the trial court reasonablyinterpreted the federal court's order. The supreme court also held that Emerson's claim of ineffective assistance of trial counsel was barred by the doctrine of res judicata after that claim wasrejected in the federal courts. Emerson, 189 Ill. 2d at 517, 727 N.E.2d at 346.

Nor is Emerson unique in this regard. In State Life Insurance Co. v. Board of Education,401 Ill. 252, 257, 81 N.E.2d 877, 880 (1948), the supreme court held that res judicata applies,even when the state court believes the federal court is in error. Similarly, in People v. Nance,189 Ill. 2d 142, 146-48, 724 N.E.2d 889, 891-92 (2000), the supreme court held that the Statewas collaterally estopped from relitigating the constitutionality of a statute held unconstitutionalby a three-judge federal district court. Our supreme court stated that this was so, "[w]hatever onethinks of the federal district court's reasoning ***." Nance, 189 Ill. 2d at 147, 724 N.E.2d at 891.

The majority opinion solely relies on People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268(1989), but Eyler recognizes that decisions of lower federal courts may become the law of thecase. Eyler, 133 Ill. 2d at 225, 549 N.E.2d at 291. Comity is yet another reason that the federalcourt's ruling is binding in this case. See Nance, 189 Ill. 2d at 147, 724 N.E.2d at 892. Themajority opinion does not consider any of these principles. This court cannot rule in a way thatnegates habeas corpus proceedings. See, e.g., People v. Shook, 35 Ill. 2d 597, 599, 221 N.E.2d290, 291-92 (1966); Monroe v. Butler, 690 F. Supp. 521, 524 (E.D. La. 1988) (and cases citedtherein), aff'd 853 F.2d 924, reported in full, 883 F.2d 331 (5th Cir. 1988), cert. denied, 487 U.S.1247, 101 L. Ed. 2d 958, 109 S. Ct. 7 (1989).

As Illinois courts are required to follow the Seventh Circuit's opinion in this case,regardless of whether this court agrees with that opinion, the trial court was required to reviewthe reasons given for striking each individual prospective juror, consider the totality of thecircumstances, and compare the State's strikes against African-Americans against its treatment ofsimilarly situated Caucasians. See Coulter v. Gramley, 155 F.3d at 922. It is clear that theSeventh Circuit contemplated that the trial judge would conduct a painstaking, detailed analysisof the reasons for excluding certain venirepeople. See Coulter v. Gramley, 155 F.3d at 918(distinguishing Mahaffey v. Page, 151 F.3d 671, 679-80 (7th Cir. 1998)). This analysis was toinclude, but not be limited to, an examination of "the broader pattern of strikes." See 155 F.3d at921.

The trial court failed to follow the procedures required by the Seventh Circuit. The trialcourt failed to perform a "similarly situated" analysis as to all of the challenged venirepeople, oreven discuss venirepeople Rhem and Brantley. The trial court did not explicitly address the factthat the State exercised nine of 10 challenges against African-Americans. The majority notesthat this was "not the primary consideration" at the third stage of the Batson procedure, but theSeventh Circuit's opinion clearly establishes that it was to be a consideration. Given theprocedural posture of this case, the record should contain more than a conclusory statement thatthe relevant circumstances were considered.

Beyond the trial court's failure to conform to the Seventh Circuit's opinion, the trial judgeunduly relied on a supposed personal knowledge of the original prosecutors.(4) A trial judge mayconsider her experience with local prosecutors as a relevant factor under Batson, but may notoveremphasize it. People v. Andrews, 146 Ill. 2d 413, 427, 588 N.E.2d 1126, 1134 (1992). After all, a prosecutor's discriminatory act is not "'immunized by the absence of such discrimination in the making of other comparable decisions.'" Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87,106 S. Ct. at 1722, quoting Village of Arlington Heights v. Metropolitan Housing DevelopmentCorp., 429 U.S. 252, 266 n.14, 50 L. Ed. 2d 450, 465 n.14, 97 S. Ct. 555, 564 n.14 (1977).

In this case, the trial judge was not the original trial judge. The prosecutors were not theoriginal prosecutors. The record is unclear as to whether the trial judge knew the first originalprosecutor when he was a prosecutor, or in his later position as a judge. Clearly, a person mayact differently as a judge than as a prosecutor. The record also shows that this trial judge knewthe other original prosecutor by reputation, not by experience.

Generally, a reviewing court may give deference to a trial judge's findings regarding thepersonalities of the prosecutors. Andrews, 146 Ill. 2d at 435-36, 588 N.E.2d at 1138. However,where the record does not show that the trial judge had experience with the prosecutors asprosecutors, or observed their explanations during the original voir dire, the review is of a coldrecord and there is no reason to reflexively defer to the trial judge's conclusions.

The trial judge also commented that "it is in vogue these days to be politically correctwith regard to race issues, ethnicity issues, gender issues," but that "[i]t doesn't seem to be as invogue these days to concern ourselves, *** with matters of integrity and credibility." Of course,Batson is not a mere matter of "political correctness," but federal constitutional law to befollowed by Illinois courts. The trial judge rightly emphasized issues of credibility.(5) However,when faced with a cold record, the trial judge's ability to rely on experience must be properlycircumscribed to avoid the appearance of partiality in favor of the State.

In sum, the majority opinion's conclusion that there was "nothing deficient" in the mostrecent Batson proceedings is misplaced. For all of the aforementioned reasons, I concur in themajority opinion's conclusion on the Apprendi issue, but respectfully dissent from the majorityopinion's analysis of the Batson issue and would remand the case for further proceedings.

 

 

1. In Coulter v. Gilmore, the federal appeals court noted that the trial court proceeding onthe remand that immediately preceded Coulter I was supplemented by two additionalproceedings for which transcripts were unavailable. Coulter v. Gilmore, 155 F.3d at 915.

2. Because defendant's habeas petition was filed in 1993, the court applied the standard ofreview that was utilized before the enactment of the Antiterrorism and Effective Death PenaltyAct of 1996 (AEDPA) (28 U.S.C.