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FIRST DIVISION

October 13, 1998

No. 1-97-1074

JUSTICE O'BRIEN delivered the opinion of the court:

Defendant, Alfred Roberts, appeals his conviction forpossession of a controlled substance with intent to deliver and hissentence of 12-years' imprisonment. On appeal, defendant contendsthe trial court erred in: (1) denying defendant's pretrial motionin limine to preclude reference to his prior convictions for theidentical offense charged, (2) allowing the State to exerciseracially motivated peremptory challenges in violation of Batson v.Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83, 106 S. Ct. 1716,1719 (1986); (3) failing to instruct the jury on the lesserincluded offense of simple possession, and (4) sentencing thedefendant to 12-years' imprisonment. We reverse and remand for anew trial.

Pretrial, defendant requested an order in limine restrictingthe use of his prior convictions for possession with intent todeliver a controlled substance because of their prejudicial nature. The trial court denied the motion, stating that defendant's priorconvictions could be used by the jury to assess defendant'scredibility. Alternatively, defendant requested the use of the"mere fact" of defendant's prior felony convictions, withoutreference to their specific nature. The trial court denied themotion and jury selection began.

During jury selection, defendant made a motion, pursuant toBatson, alleging the State was using its peremptory challenges toexclude black members of the venire. The State assertedunemployment and residence with his parents for excluding aparticular potential black juror. The defendant countered that theState had accepted a young white male juror who was also unemployedand living with his family.

Then, the following ensued:

"THE COURT: Does the State wish to respond further?

PROSECUTOR: No.

THE COURT: All right. I find they have made apreliminary challenge as far as the last--preliminary showingas to the last juror, Mr. McClendon.

Now, Mr. State's Attorney, would you like to respond? Therehas been a valid reason as to everybody else, but not as tothe last juror, Mr.McClendon.

PROSECUTOR: If you can give me one moment? Judge, Ihave nothing further to add other than--

THE COURT: You have nothing further to add when I saidthey have made a preliminary--you cannot give me anotherreason?

PROSECUTOR: Judge, may I see the card?

THE COURT: Let's have the cards, please.

PROSECUTOR: I believe I handed it to Your Honor. Judge,I would just note that on his juror information card he gaveno information as to any type of occupation.

THE COURT: Please indicate the reason why that personwas excused.

PROSECUTOR: The reason why that person was excused,Judge, is because of being unemployed.

THE COURT: He has indicated he is employed.

PROSECUTOR: Well, I don't think he is truthful infilling out his application on the juror information form inwhich he did not note any employer or occupation.

THE COURT: That is the reason you are listing, for himnot being truthful on the application?

PROSECUTOR: Correct.

THE COURT: Would you like to respond?

DEFENSE COUNSEL: I don't think that's a validexplanation, Judge. At the time he filled out this card hewasn't being paid by an employer, and he indicated that on hiscard. That indicates he is being truthful.

THE COURT: The Court finds that is a racially neutralreason. The card is lacking in all kinds of information,including that information that was volunteered. I can seethat as a reason. Let's get on with it."

At trial, the State's only witnesses were Officers Hladik andDarlin. Hladik testified he suspected defendant of drugtrafficking and positioned himself on a rooftop across fromdefendant's location. Hladik observed a number of anonymouspersons approach defendant and hand him currency. Defendant wouldthen retrieve a small, unknown object from a nearby bush and handit to the person. After observing several such transactions, Hladik radioed Darlin to detain defendant. Hladik joined Darlinand defendant and then proceeded to the bush and retrieved aziplock bag containing a single white rock-like substance. Hladiksearched defendant and recovered $80 in currency.

The parties stipulated to the chain of custody and chemicalanalysis of the substance recovered from defendant as 0.15 grams ofcocaine.

The defendant presented no evidence and rested.

During the jury instruction conference, defendant requested ajury instruction for simple possession of a controlled substance,a lesser included offense. The trial court denied the request.

The jury found defendant guilty of possession with intent todeliver 0.15 grams of a controlled substance.

At sentencing, a representative from TASC, a drug treatmentprogram, advised the trial court that defendant was an appropriateTASC candidate. The defendant, in allocution, said he wanted to berehabilitated and do the "right things" upon his release fromcustody. The trial court declined the TASC request, noted thedefendant's prior felony drug trafficking convictions, founddefendant should be sentenced as a Class X offender and sentenceddefendant to 12-years' imprisonment. Defendant appealed.

Because we find defendant's contention of error pursuant toBatson to be dispositive, we address it first.

The equal protection clause of the fourteenth amendment doesnot allow prosecutors to consider race as a factor when choosingjurors. Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83, 106 S. Ct. 1716; 1719 (1986). Defendant has the initial burdento prove a prima facie case that the prosecutor used peremptorychallenges to remove potential jurors based on their race. Peoplev. Andrews, 146 Ill. 2d 412, 424, 588 N.E.2d 1126 (1991). Afterthe defendant makes his prima facie case, the burden shifts to theprosecution to come forward with race-neutral reasons for strikingthe particular potential juror. People v. Williams, 147 Ill. 2d173, 220, 588 N.E.2d 983 (1991). If a race-neutral explanation istendered, the trial court then decides whether the reason is apretext for racial discrimination. People v. Davis, 287 Ill. App.3d 46, 51, 677 N.E.2d 1340, 1344 (1997). A trial court's decisionon the matter will be upheld unless it is clearly erroneous.Hernandez v. New York, 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412,111 S. Ct. 1859, 1871 (1991).

Although giving untruthful answers on a jury card is alegitimate race-neutral reason for striking a potential juror(People v. Wiley, 165 Ill. 2d 259, 275-76, 265 N.E.2d 189 (1995)),as it was proffered here, that explanation was pretextual and aviolation of Batson.

Initially, the chronology of events is troubling. When thetrial court said the State's justification was insufficient andasked if the State had anything further, the State responded "No." However, after the State learned the trial court would grant theBatson motion unless it offered another reason, the State suddenlyasked to see the juror's card. Only after reviewing the card didthe State offer "untruthfulness" as its reason, stating that thejuror's jury card answers varied from his voir dire answers. Thischronology of events reveals the State was unaware of the juror'salleged "untruthfulness" when it made its peremptory challenge.

Next, the State's claim the juror was untruthful is notsupported by the record. The jury card asks whether the potentialjuror is employed. There are two answer options: check the "yes"box or check the "no" box. The juror checked the "no" box. Duringvoir dire, the court asked the juror, "[Your juror card] indicatesyou are presently unemployed, is that correct?" to which the jurorresponded, "Actually I do on and off work in studios. I am astudio production engineer." Despite the juror's candidexplanation of his answer, the State claims the juror was"untruthful." The State reasons, in essence, that the juror liedbecause he answered "no" though he worked in some capacity, if only"on and off." The State's reasoning is flawed. Because the jurorcard answers could only be given in a "yes" or "no" fashion,neither of which was entirely accurate, under the State'sreasoning, the juror would have been "untruthful" no matter whathis answer had been: here because he answered "no" but worked insome capacity, if only "on and off," and in the opposite, butequally plausible scenario, because he answered "yes" but workedonly "on and off" and not at present. Accordingly, the State'sclaim is not well taken.

Finally, the State's proffered explanations are factually atodds. Initially, the State challenged the juror because his voirdire answers revealed he was unemployed and lived with his family. In its substituted explanation, the State challenged him because hewas employed but had not disclosed this on his juror card. Theinherent conflict of these two proffered explanations suggests thatneither was genuine.

Because the State failed to provide a race-neutral explanationfor excluding McClendon that was nonpretextual, the trial court'sdenial of defendant's Batson motion was clearly erroneous. Further, because it is a denial of equal protection to exclude asingle prospective juror on the basis of race (People v. McDonald,125 Ill. 2d 182, 530 N.E.2d 1351 (1988)), we reverse and remand fora new trial.

Defendant's first (admissibility of prior convictions) andthird (entitlement to lesser included offense instruction)contentions of error may arise on retrial and we address them.

First, the admissibility of defendant's prior convictions. The State contends defendant has waived this issue by failing totestify at trial. Although the issue may be waived (see Luce v.United States, 469 U.S. 38, 42-43, 83 L. Ed. 2d 443, 463-64, 105 S.Ct. 460, 448 (1984); People v. Gil, 240 Ill. App. 3d 151, 163, 608N.E.2d 197 (1992); People v. Hartfield, 137 Ill. App. 3d 679, 684,484 N.E.2d 1136 (1985)), waiver is a bar upon the parties and notupon the court (Wagner v. City of Chicago, 166 Ill. 2d 144, 149,651 N.E.2d 1120 (1995)). Accordingly, we address the issue.

Evidence of prior convictions is admissible for purposes ofattacking a witness's credibility only if the crime was a felony orinvolved dishonesty or a false statement, it has been less than 10years since the date of conviction or release, and the probativevalue of the evidence outweighs the danger of unfair prejudice.People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). Atrial court's decision to admit evidence of a previous convictionunder Montgomery will not be reversed absent an abuse ofdiscretion. People v. McKibbins, 96 Ill. 2d 176, 187-89, 449N.E.2d 821 (1983).

After the trial court learned the defendant had seven priorconvictions (five for possession of a controlled substance, one fordelivery of a controlled substance, and one for unlawful use of aweapon by a felon), the following ensued:

"THE COURT: Mr. State's Attorney, accordingly, all arewithin the ten-year limitation?

PROSECUTOR: That's correct.

THE COURT: Counsel, would you like to be heard?

DEFENSE COUNSEL: Well, Judge, it looks like several ofthese he was convicted of all on the same day. We would justbe asking if he takes the stand in this case that the jury notbe told of his prior convictions.

PROSECUTOR: Your Honor --

THE COURT: Excuse me. The Court will allow each ofthese convictions to be entered into evidence only for impeachment purposes except for the conviction for UnlawfulUse of a Weapon by a felon. Each of these convictions arewithin the time, in the ten-year limitation.

Also, each of these other convictions for the Possessionof a Controlled Substance with Intent to Deliver, as wellas Delivery of a Controlled Substance go to theDefendant's credibility for testifying, since beingconvicted of this offense, if he were convicted of hisoffense, he would incur a greater penalty because ofthat. Therefore, it goes to the credibility issue.

DEFENSE COUNSEL: Will they be hearing, Judge, then whatthe convictions are for or just that he has had priorconvictions?

THE COURT: They will hear what the convictions are for.

DEFENSE COUNSEL: I will ask that the Court considerallowing only that he had been convicted and when thisoccurred rather than what they are for, since that would be,obviously, prejudicial in this case.

THE COURT: The Court believes the prejudicial value isoutweighed by the probative effect. They will hear them allexcept for the Unlawful Use of a Weapon."

Defendant contends the trial court abused its discretion byfocusing on collateral sentencing consequences rather than on howthe prior convictions would impact defendant's testimonialcredibility. We disagree. Under the first prong of the Montgomeryanalysis, evidence of prior convictions is admissible for purposesof attacking a witness's credibility either if the crime was afelony or it involved dishonesty or a false statement. Defendantadmits that the prior convictions involved were felonies. Thefirst prong of Montgomery is satisfied and the trial court'scomment about sentencing consequences is irrelevant.

Defendant next contends the trial court abused its discretionby not limiting the State to the "mere fact" of his priorconvictions. Under the facts and the specific nature of the priorconvictions, we agree. This case presented an ideal situation foruse of the "mere fact" method of impeachment: The State easilycould have discredited defendant's testimony without divulging thenature of his prior convictions (People v. Atkinson, 288 Ill. App.3d 102, 679 N.E.2d 1266 (1997); People v. Jennings, 279 Ill. App.3d 406, 410, 664 N.E.2d 699, 702-04 (1996)), whereas the jury'snatural inclination would be to infer guilt from such evidence (M.Graham, Cleary & Graham's Handbook of Illinois Evidence