author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE COULTER, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3175
    Opinion filed March 16,1992.
    Rehearing denied June 25,1992.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and William P. Pistorius, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Dwayne Coulter was convicted of the murder of Michael Ridges and conspiracy to murder Robert Fischer. Defendant was sentenced to natural life imprisonment. For the following reasons, we affirm.

The record on appeal indicates the following facts. Defendant, Allen Falls, Ira Jackson and John Annerino were charged with murder and conspiracy to commit murder. Prior to a hearing on defendant’s fitness to stand trial, the State found out that defendant had been examined by two experts, Drs. Conroe and Hemmerich. The court ordered defendant to turn over two documents relating to defendant’s fitness prepared by Dr. Hemmerich and one report prepared by Dr. Conroe, along with notes from Dr. Conroe’s second examination of defendant.

At the fitness hearing, the State called Dr. Kaplan, who testified that defendant was fit to stand trial. Following Dr. Kaplan's testimony, the jury was sent from the room. The court allowed the State to conduct a voir dire of Dr. Hemmerich. The State had subpoenaed Dr. Hemmerich earlier that morning because defendant did not intend to have him testify at the hearing. Dr. Hemmerich opined that defendant was fit to stand trial.

When the jury returned, defendant called Dr. Conroe, who testified that defendant was unfit to stand trial. On cross-examination, Dr. Conroe admitted that before his second examination of defendant, he had seen Dr. Hemmerich’s second report to the contrary. The jury found defendant fit to stand trial.

Before trial, the court denied defendant’s motion to sever the charges against him. Defendant’s answer to discovery listed insanity as a possible defense and listed witnesses defendant might call at trial. The State moved to bar expert testimony on the insanity defense because defendant refused to cooperate with a court-ordered examination and there were no reports bearing on the insanity defense. Defense counsel replied that the potential witnesses had been listed and the relevant reports had been disclosed. The court directed that subpoenas issue for Drs. Conroe and Hemmerich.

The following day, the State reported that Dr. Conroe had stated by phone that he had no reports on sanity. Dr. Hemmerich refused to speak to the State and was served with the subpoena. The State asserted that it had a right to know which of the doctors listed by defendant might testify on the insanity defense. The court ordered defense counsel to so specify and jailed defense counsel when he refused to do so. Later, Dr. Hemmerich testified that he had an opinion on defendant’s sanity, but it was not in writing. The court ruled that Dr. Hemmerich would provide a written summary of his opinion or he would be barred from testifying at trial.

Later, defendant moved to substitute judges before another judge. After a hearing, the motion was denied and the case was transferred back to the original trial judge.

At the outset of the jury selection process, the trial court stated that both sides would be required to give reasons for their peremptory challenges. After the first panel of venirepersons was questioned on voir dire, defendant moved for a mistrial because the State had exercised its first six peremptory challenges to exclude African-Americans from the jury. The trial court denied not only this motion, but also two subsequent motions for mistrial claiming discriminatory jury selection.

The following evidence was adduced at trial. In August 1984, Robert Fischer became the friend of John Annerino, an official in the clerk’s office for the City of Chicago. Fischer moved in with Annerino, becoming the pastor of a church which Annerino ran from the basement of his home. As pastor, Fischer had access to church assets in excess of $500,000. Annerino supplied Fischer with a luxury car paid for by church funds, as well as a job at the clerk’s office.

Later, the two men had a falling out; Annerino told Fischer “that there was only one way that [Fischer] would ever leave that house or his church, and that would be in a coffin.” Fischer moved into his mother’s house in Prospect Heights on June 30, 1985. Fischer lost his job the next day. Annerino filed, then dropped, a criminal charge against Fischer; both men filed suit over room, board and possession of Fischer’s personal effects.

In August 1985, a brick was thrown through the picture window of Fischer’s home. Fischer later received a death threat by telephone. On October 5, 1985, someone shot at Fischer as he left his job at a bar. Steve Calvin testified that on October 14, 1985, he spoke with Ira Jackson and Allen Falls, the latter offering him money to kill Fischer for Annerino. Bobby Lindsey also testified that Falls offered him money to kill Fischer.

On October 15, Lindsey spoke to Falls in front of defendant. Lindsey first drove Falls and defendant to Annerino’s house; later they went to Fischer’s home. Falls told Lindsey to shoot Fischer. Lindsey was given a .22 revolver and was shown Fischer’s picture. Fischer’s mother answered the door and told Lindsey, who claimed he had car trouble, that Fischer was not home. The three men left.

On October 16, 1985, Lindsey, Falls, Jackson, Calvin and defendant drove to Fischer’s home. Falls gave Calvin a .22 caliber gun and defendant gave Lindsey a .357 caliber gun. The five men left after hearing that Fischer was not at home again. Later that day, Fischer received a phone call from a man purporting to be a Chicago police officer. The man claimed to have a warrant for Fischer’s arrest. The man stated that he would be at Fischer’s house the next morning at 9:30 a.m., and Fischer should be home. Fischer called the Prospect Heights police department and spoke with Officer Michael Ridges.

On October 17, 1985, Officer Ridges arrived at Fischer’s home at 9 a.m., where the two men spoke for about 10 minutes. Officer Ridges wrote a report and left. Minutes later, near the intersection of Willow and Elmhurst Roads, Officer Ridges effected a traffic stop of a blue Cadillac without license plates. In the car were Falls, Jackson and defendant.

Officer Lussky, who heard Ridges call in the traffic stop, heard a call minutes later of an officer shot at the same location. At the scene, Lussky found Ridges on the ground with an injury to his chin and a fatal bullet wound to the head. He also found Falls’ driver’s license near Ridges. Officer Kucharski, hearing of the shooting, spotted the blue Cadillac on the Kennedy Expressway, called for a wagon and pulled the car over. Falls, Jackson and defendant were ordered out of the car. Defendant wore an outfit strongly resembling a Chicago police uniform. A pistol, badge and police scanner were in plain view in the car.

Officer Tabuka, searching defendant, found a .38 caliber pistol with two spent cartridges and four live shells. Later testing showed that the bullet which killed Ridges came from this gun and showed gunpowder residue on defendant’s hands. Officer Harder testified that he noticed nothing unusual about defendant’s behavior at the time of arrest. Officer Smith testified that defendant seemed rational when arrested, but admitted that he had testified before that defendant did not seem rational.

Defendant testified that on October 17, 1985, he, Falls and Falls’ cousin drove to Des Plaines to look for a job in a mall. They were lost when they were pulled over by the police. The officer asked to see Falls’ license. The men got out of the car. The officer asked if defendant had a gun; defendant said he did. Defendant testified he was angry that Ridges did not believe he was a security guard, and the gun went off accidentally after he slammed it down on the hood of the Cadillac. The three men fled in panic when Ridges was shot. Later testing failed to show marks or powder burns on the hood of the car.

Dr. Hemmerich testified that defendant was insane at the time of the shooting. Dr. Kaplan testified that defendant was not suffering from a mental illness at the time of the offense.

Following closing arguments, the jury found defendant guilty of murdering Ridges and conspiring to murder Fischer. The jury declined to impose the death penalty. Defendant was sentenced to natural life imprisonment and appealed to this court.

I

Defendant first argues that the trial court erred in failing to sever the charges against him. Joinder of prosecutions is permitted when the charges are “based on the same act or on 2 or more acts which are part of the same basic transaction.” (Ill. Rev. Stat. 1987, ch. 38, pars. Ill — 4(a), 114 — 7.) Although there are no precise factors which determine whether offenses are part of the same comprehensive transaction, important factors include: the proximity of the offenses in time and location; the identity of evidence needed to link the offenses; whether the offenses shared a common method; and whether the same or similar evidence would establish the elements of the offenses. (People v. Duncan (1987), 115 Ill. 2d 429, 441, 505 N.E.2d 307, 312, vacated on other grounds (1987), 484 U.S. 806, 98 L. Ed. 2d 18, 108 S. Ct. 53.) The decision to sever charges rests within the discretion of the trial court. People v. Mays (1988), 176 Ill. App. 3d 1027, 1037, 532 N.E.2d 843, 849.

The record indicates that Ridges was shot by defendant “a country block and a half” from Fischer’s home. Ridges stopped the car in which defendant was a passenger approximately 10 minutes after taking a report at Fischer’s home concerning a suspicious phone call from an alleged Chicago police officer, as well as events implying that someone was seeking to kill Fischer. Evidence that defendant was acting in furtherance of a conspiracy, including not only the police gear worn by defendant and found in the car, but also slips of paper found on the defendant indicating the names and phone numbers of Annerino and Fischer’s mother, was introduced to help establish the element of intent necessary to prove murder. The record therefore supports the trial court’s discretion to deny severance in this case.

The cases cited by defendant are distinguishable. In People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533, this court affirmed the trial court’s refusal to join charges. (Olson, 59 Ill. App. 3d at 649, 375 N.E.2d at 538.) In People v. Fleming (1970), 121 Ill. App. 2d 97, 257 N.E.2d 271, the felonies were committed eight months apart. (Fleming, 121 Ill. App. 2d at 102, 257 N.E.2d at 273.) In People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, the jury heard evidence of an unrelated prior felony conviction, which created a significant risk that the jury would unfairly infer that the defendant had a propensity to commit crimes. (See Edwards, 63 Ill. 2d at 139-40, 345 N.E.2d at 498.) Here, there was no introduction of unrelated prior convictions; thus, defendant has failed to show error in this case.

II

Defendant’s next argument on appeal is that the trial court erred in instructing the jury at the fitness hearing that defendant was presumed fit. In his post-trial motion, defendant simply alleges that the “[tjrial court refused defense instruction at trial and during fitness proceedings,” which is too vague to preserve the issue. People v. Harris (1986), 146 Ill. App. 3d 632, 636, 497 N.E.2d 177,179.

Even if the argument had been preserved, it is not persuasive. The instruction at issue correctly states the law. (See Ill. Rev. Stat. 1987, ch. 38, par. 104 — 10.) Defendant notes that the instruction did not tell the jury that the presumption of fitness vanishes once a bona fide doubt as to his fitness is raised. The record, however, indicates that the jury was instructed that the State had to prove defendant’s fitness by a preponderance of the evidence. Hence, the mention of the presumption was not reversible error. People v. Young (1978), 60 Ill. App. 3d 351, 355-56, 376 N.E.2d 739, 742.

III

Defendant’s third argument is that the trial court erred by orally instructing the fitness jury that defendant need only have the opportunity, rather than the ability, to assist counsel in his defense. The written instruction stated the proper standard, but defendant contends that the written instruction cannot cure the improper oral instruction.

The cases cited by defendant on this point involved the submission of contradictory written instructions. (People v. Haywood (1980), 82 Ill. 2d 540, 545, 413 N.E.2d 410, 413; People v. Jenkins (1977), 69 Ill. 2d 61, 64-65, 370 N.E.2d 532, 534.) This case involves a misread oral instruction, which does not require reversal because the proper written instruction was submitted. See People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098.

IV

Defendant’s fourth argument is that his fifth amendment privilege under the United States Constitution was violated by requiring defendant to disclose one of two reports prepared by Dr. Hemmerich, because defendant did not intend to call him as a witness or use his report at the fitness hearing. Defendant raised the issue of privilege at the hearing, but failed to argue or cite authority on that issue on appeal, thus waiving it. People v. Hoffmann (1986), 140 Ill. App. 3d 1056, 489 N.E.2d 460.

The constitutionality of admitting psychiatric reports in judicial proceedings has been considered by the United States Supreme Court. In Buchanan v. Kentucky (1987), 483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906, the Court stated that “if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.” (Emphasis added.) Buchanan, 483 U.S. at 422-23, 97 L. Ed. 2d at 355, 107 S. Ct. at 2917-18; see also Estelle v. Smith (1981), 451 U.S. 454, 465, 68 L. Ed. 2d 359, 370, 101 S. Ct. 1866, 1874.

The record does not indicate that Dr. Hemmerich’s examination was forced upon defendant by the trial court or the State. Although defendant did not intend to call Dr. Hemmerich or rely on his report at the fitness hearing, defendant did intend to present psychiatric evidence from Dr. Conroe. Moreover, the record shows that Dr. Conroe had reviewed the report at issue before his second examination of defendant. Thus, this case falls within the scope of Buchanan and Estelle.

Defendant argues that Buchanan and Estelle are inapposite because they deal with admissibility rather than discoverability. Yet the scope of discovery includes not only what is admissible at trial, but also that which leads to what is admissible at trial. Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 232, 443 N.E.2d 1125, 1128.

Defendant relies on People ex rel. Bowman v. Woodward (1976), 63 Ill. 2d 382, 349 N.E.2d 57, in which the State’s discovery request would have required defendant to reveal his knowledge of whether various examinations or tests had been performed on him, the names of any persons who conducted such tests and the results of those tests. (Bowman, 63 Ill. 2d at 386, 349 N.E.2d at 59.) By contrast, this case involves the results of a known report prepared by a known expert. Moreover, Bowman did not purport to overrule People v. Williams (1967), 38 Ill. 2d 115, 121, 230 N.E.2d 224, 228, which held that reports relating only to defendant’s mental state do not raise a fifth amendment issue. Defendant has failed to show that the reports contained incriminating statements made by defendant. Finally, we note that Bowman predates Estelle and Buchanan.

V

Defendant’s fifth argument is that the State’s closing argument at the fitness hearing improperly used hearsay statements of experts as substantive evidence, shifted the burden of proving fitness to defendant, and improperly insinuated that Dr. Conroe was lying. Objections to closing arguments must be made at trial to be preserved on appeal. (Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 173, 443 N.E.2d 774, 777.) The record here does not show objections to the allegedly improper use of hearsay or shifting the burden of proof, thus waiving these issues.

The contention that the State improperly asserted that Dr. Con-roe lied at the fitness hearing because he was paid by defendant was preserved for appeal, but is unavailing for two reasons. First, the record shows that the argument was made in response to defendant’s closing argument that Dr. Conroe had staked his reputation on his opinion. Arguments made in response to like comments of opposing counsel do not require reversal. (E.g., Crutchfield v. Meyer (1953), 414 Ill. 210, 111 N.E.2d 142.) Second, it is not improper per se to comment on the compensation a witness may receive, so long as such compensation is in evidence or may be inferred from the evidence. (See Hunter, 111 Ill. App. 3d at 172, 443 N.E.2d at 777.) Here, the record indicates that Dr. Conroe was a paid witness for defendant and had a record of testifying for criminal defendants. Defendant has failed to show that the State abusively alleged an illegitimate relationship between the witness and defense counsel. Hunter, 111 Ill. App. 3d at 175, 443 N.E.2d at 778.

VI

Next, defendant argues that the trial court improperly ruled that his expert witness could not testify at trial unless he submitted a written report or summary of his opinion of defendant’s sanity. Defendant also argues that unfair prejudice resulted because the State cross-examined Dr. Hemmerich on the fact that the report was prepared the day before trial. Defense counsel must furnish the State with the defenses he intends to make, along with the names and last known addresses of persons he or she intends to call as witnesses together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements. (134 Ill. 2d R. 413(dXi).) The court may also order additional disclosure of relevant and material information. 134 Ill. 2d R. 415(e).

In this case, the State moved to bar expert testimony on the insanity defense at trial because defendant had refused to cooperate with a court-ordered mental examination; the record suggests that the motion could have been granted. (See Ill. Rev. Stat. 1987, ch. 38, par. 104 — 14(a).) Instead, the testimony was to be barred because defendant had not submitted any reports relating to the insanity defense. However, there is generally no requirement that a witness reduce his opinion to writing before testifying at trial, absent a showing of bad faith. (People v. Fleming (1987), 155 Ill. App. 3d 29, 40, 507 N.E.2d 954, 961.) Nor has the State cited authority for the proposition that defendant must specify which witnesses may testify on a particular issue.

In this case, the State has not suggested bad faith; thus, the order was erroneous. However, defense counsel’s redirect examination remedied any prejudice defendant may have suffered by eliciting testimony that Dr. Hemmerich had an opinion before committing it to paper. The use of a court-ordered summary to impeach an expert is harmless error where, as here, the evidence of defendant’s guilt is not closely balanced. See Fleming, 155 Ill. App. 3d at 40-41, 507 N.E.2d at 961.

VII

Defendant’s seventh argument is that his motion for substitution of judges was wrongfully denied. A defendant is entitled to a new trial where the trial court’s remarks, taken as a whole, exhibit a hostility toward defense counsel and defendant. People v. Pressley (1987), 160 Ill. App. 3d 858, 513 N.E.2d 921.

The record indicates that the trial court referred to defense counsel in an unflattering way on numerous occasions, but defendant has failed to point to any incident where the trial court was hostile towards defendant himself. (See Pressley, 160 Ill. App. 3d at 865, 513 N.E.2d at 926.) Nor does defendant point to any instance where the trial court made hostile comments in the presence of the jury. Indeed, the record reflects that in finding defense counsel in contempt, the trial court delayed acting upon this finding on the chance that it might be reported in the media, where a juror might read of it. In addition, the record shows that this case, unlike Pressley, was not a close one. (See Pressley, 160 Ill. App. 3d at 865, 513 N.E.2d at 926.) Therefore, defendant has not shown the motion was improperly denied, given the record on appeal.

VIII

Defendant argues that the State purposefully discriminated against African-Americans during jury selection, in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. This court, after hearing oral argument on October 9, 1990, issued an order remanding the case to the circuit court for clarification of the record concerning the jury selection procedure and for any necessary further proceedings, pursuant to People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849, vacated (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792, yet retaining jurisdiction over the appeal pending completion of the supplemental hearing and the submission of supplemental briefs and oral argument on the Batson issue, pursuant to People v. Garrett (1990), 139 Ill. 2d 189,194-95, 564 N.E.2d 784, 787.

A

On appeal, defendant contends that this case must be remanded again for a procedurally correct hearing, pursuant to Hope. In that case, our supreme court stated that the procedure to be followed when jury selection is challenged under Batson cannot be collapsed into an undifferentiated review of defendant’s contentions and the State’s rebuttal explanations. (Hope, 137 Ill. 2d at 456, 560 N.E.2d at 860.) In this case, the trial court initially required both parties to give explanations for its peremptory challenges from the very start of voir dire, requiring this court to remand pursuant to Hope.

The record on remand indicates the following facts. The trial court stated that although it denied the Batson motion before trial, it had not fully explained its reasoning. The trial court nevertheless would afford defense counsel with the opportunity to supplement the record on this issue. Defense counsel noted that defendant was an African-American accused of murdering a white police officer. Defense counsel further stated that the State used 9 of its 10 peremptory challenges to exclude African-Americans from the jury. The State replied that numbers do not make a prima facie case of discrimination. Defense counsel responded that the excused venirepersons were heterogeneous, sharing race as their sole common characteristic. The trial court found that, based on the record presented, defendant had not made a prima facie case of discrimination. The trial court also found that had defendant made a prima facie case, the State had offered race-neutral reasons for its challenges. Defendant’s motion to reconsider was denied.

It appears that the procedure followed was less than ideal, for the record suggests that defendant was unable to attack the reasons offered by the State until the hearing on defendant’s motion to reconsider. Moreover, the record indicates that the trial court exhibited an open hostility toward defense counsel in this capital case — hostility that does not find justification in this record. Nevertheless, defense counsel’s responses to the State’s reasons were heard by the trial court during defendant’s motion to reconsider. The record therefore does not suggest that the trial court’s hostility amounted to a prejudgment of the issue on remand. As the parties have twice marshalled the evidence on this issue and provided this court with factual submissions and judicial findings sufficient for review, it is unnecessary to remand the cause a second time. (Hope, 137 Ill. 2d at 461, 560 N.E.2d at 863.) We therefore turn to the merits.

B

Under Batson and its progeny, a defendant must first establish a prima facie case of purposeful racial discrimination in jury selection by showing that the State exercised its peremptory challenges to remove members of a cognizable racial group from the venire. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; see also Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (defendant need not be member of cognizable racial group, but defendant’s racial identity may be relevant to determination of prima facie case).) The only question which then remains is whether considering “all relevant circumstances,” a prima facie case of discrimination has been established. (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; People v. Mahaffey (1989), 128 Ill. 2d 388, 412-13, 539 N.E.2d 1172, 1184.) “Relevant circumstances” include, but are not limited to: (1) a pattern of strikes against African-American venire members; (2) disproportionate use of strikes against such members; (3) whether the excluded venirepersons were a heterogeneous group sharing race as their only common characteristic; (4) the level of African-American representation in the venire as compared to the jury; (5) prosecutorial questions and statements during voir dire and while exercising challenges; and (6) the races of defendant and victim or witnesses. (Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 791; Hope, 137 Ill. 2d at 453, 560 N.E.2d at 859; People v. Evans (1988), 125 Ill. 2d 50, 63-64, 530 N.E.2d 1360, 1365.) The trial court’s determination of whether a prima facie case of discrimination has been shown will not be disturbed on appeal unless it is against the manifest weight of the evidence. Hope, 137 Ill. 2d at 461-62, 560 N.E.2d at 863.

Our supreme court has cautioned trial courts against collapsing what ought to be a methodical Batson hearing procedure into an undifferentiated review of defense and State contentions. (Garrett, 139 Ill. 2d at 201, 564 N.E.2d at 789-90; Hope, 137 Ill. 2d at 456, 560 N.E.2d at 860.) Conversely, the court has also cautioned trial courts against omitting the first step in the Batson analysis altogether by requiring the State to give reasons for its challenges without regard to whether it is warranted by the record. People v. Jackson (1991), 145 Ill. 2d 43, 98, 582 N.E.2d 125,151.

Initially, defendant argues that because the State offered race-neutral explanations for its peremptory challenges and the trial court 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. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859.) However, Hernandez applies where the State defends its peremptory challenges without the prompting of the trial court, not in cases where the trial court forces the State to provide reasons before any Batson issue arises. (See Jackson, 145 Ill. 2d at 101, 582 N.E.2d at 152.) The record shows that this case falls in the latter category; thus, the issue of whether defendant made a prima facie case is not moot.

We therefore turn to the question of whether defendant made a prima facie case of discriminatory jury selection. The record indicates that the State used 9 of 10 peremptory challenges (90%) to exclude African-Americans and that its first six peremptories were so used, suggesting a pattern of strikes against minority venirepersons and a disproportionate use of strikes against minority venirepersons.

Moreover, as in Hope, this case involves an African-American defendant charged with the murder of a Caucasian police officer. (See Hope, 137 Ill. 2d at 464, 560 N.E.2d at 864.) As noted above, the races of the defendant and victim are relevant circumstances which weigh here in favor of finding that defendant made a prima facie case of discrimination.

Furthermore, the record indicates that the excluded venirepersons were heterogeneous, sharing race as their only common characteristic. The record shows that of the excluded venirepersons, some were employed and some were not. The employed venirepersons worked as a nurse, a post office worker, a district trainer for “7-11” stores, a linen company employee and a salesperson. The other challenged venirepeople were unemployed for various reasons: one was a student; one was not employed outside the home because she was a mother and homemaker; one was laid off from his job; and one was on social security due to an asthma condition. The excluded members had been employed or unemployed for various lengths of time. The group ranged in age from 21 to 54 years old. Five of the excluded venirepersons were female; four were male. At least five of the group were single; at least one was currently married. Some of the excluded group indicated that they had children; others did not so indicate. Some indicated that they or members of their families had been victims of crime; others did not. The excluded persons lived at their current addresses from 2 to 24 years.

The presence of a pattern or disproportionate use of strikes against a group of otherwise heterogeneous minority venirepersons typically results in a finding that a prima facie case has been made. See People v. Kindelan (1991), 213 Ill. App. 3d 548, 553, 572 N.E.2d 1138, 1141 (and cases cited therein); People v. Lockhart (1990), 201 Ill. App. 3d 700, 711, 558 N.E.2d 1345,1352.

The State responds that 16 of the 55 persons comprising the panel from which the jury was selected were African-American (roughly 29%) and that three African-Americans sat on defendant’s jury (25%). Nevertheless, evidence of pattern or disproportionate use of strikes against an otherwise diverse group of minority venirepersons is not always offset by evidence that the percentage of African-Americans on the jury was identical to the percentage in the venire. (Kindelan, 213 Ill. App. 3d at 554, 572 N.E.2d at 1141-42.) Indeed, in this case, the record indicates that the percentage of minority jurors is less than the percentage of minority venirepersons.

The State also argues that the trial judge properly considered the reasons it required the State to supply in finding that no prima facie showing had been made. In a given case, the State might offer truly contemporaneous explanations which would be relevant to the determination of the prima facie case, but such explanations might nevertheless be outweighed by the totality of the circumstances. (Hope, 137 Ill. 2d at 460, 560 N.E.2d at 862.) Given the circumstances here, it appears that a prima facie case was made; under our case law, the trial court’s contrary finding was against the manifest weight of the evidence.

C

Accordingly, the burden shifts to the State to come forward with clear, reasonably specific, legitimate and race-neutral explanations for striking the venirepersons. (Hope, 137 Ill. 2d at 453, 560 N.E.2d at 865; see Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Such explanations need only be subjectively neutral (People v. Jones (1990), 201 Ill. App. 3d 440, 448, 559 N.E.2d 112, 118), and need not rise to the level justifying a challenge for cause, but a mere assertion of good faith or nondiscriminatory motive is insufficient. (People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379.) The trial court must make a sincere, reasoned assessment of the genuineness of the proffered explanations. (People v. Baisten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060, 1068.) Whether the prima facie case has been rebutted is a factual question grounded in credibility; thus, the trial court’s decision is entitled to great deference and will not be reversed unless it is against the manifest weight of the evidence. (Hope, 137 Ill. 2d at 467, 560 N.E.2d at 866; Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.) Because the exclusion of even one venireperson on the basis of race requires reversal of defendant’s conviction (People v. McDonald (1988), 125 Ill. 2d 182, 200-01, 530 N.E.2d 1351, 1359), the State’s explanation for peremptorily excluding each African-American venireperson will be reviewed. (Kindelan, 213 Ill. App. 3d at 555, 572 N.E.2d at 1142.) When the original prosecutors are not involved on remand, speculative, ex post facto explanations do not meet the requirements of a Batson hearing (People v. Johnson (1990), 199 Ill. App. 3d 798, 806, 557 N.E.2d 565, 569); we therefore turn to consider the reasons proffered by the State during the original voir dire.

Edward Terry — The State asked to exclude Terry because he indicated he had some problems with the fact that defendant could be sentenced to death. The State conceded that Terry’s responses did not justify a challenge for cause pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, but argued that a peremptory challenge was permissible. Our supreme court, in Jackson, affirmed a trial court finding that the State’s explanations were neutral where one reason offered for exclusion was a venireperson’s reaction to the possibility of a death sentence (see Jackson, 145 Ill. 2d at 100, 582 N.E.2d at 151), though the court did not rely on that explanation (see Jackson, 145 Ill. 2d at 102, 582 N.E.2d at 152). As the State’s reasons do not need to rise to the level of a challenge for causé, apprehension over the possibility of a death sentence may be deemed a proper reason for excluding Terry.

Anthony Powe and Kevin Archibald — The State explained that Powe had previously been charged with theft in 1985 and had not admitted this to the trial court when asked. The State had sought to exclude Archibald for cause, noting a civil suit filed against him and also stating that he had been charged with theft in 1985. The failure to admit the prior criminal charge appears to be a sufficient race-neutral reason for exclusion. (People v. Murff (1991), 214 Ill. App. 3d 1034, 1040, 574 N.E.2d 815, 819.) Defendant contends that the State’s reliance on the theft charges is pretextual because the State accepted a Hispanic venireperson named Martinez who had been charged with burglary. Although the trial court must consider the extent to which excluded minority venirepersons possessed the same characteristics as accepted nonminority venirepersons in assessing the legitimacy of the State’s explanations, an excluded venireperson may also lack or possess an additional characteristic which explains the exclusion. (Harris, 129 Ill. 2d at 179-80, 544 N.E.2d at 382.) In this case, the record indicates that Archibald did not respond when the trial court asked him whether he had ever been criminally charged. In contrast, Martinez discussed his charge when asked.

Marcina Adams — The State explained that it wished to exclude Adams because she was a licensed practical nurse. The State did not want her as a juror where medical testimony on the insanity defense was to be presented. The State’s concern over the employment status and positions of venirepersons can be legitimate and race-neutral. People v. Mack (1989), 128 Ill. 2d 231, 241, 538 N.E.2d 1107, 1112; cf. Bass v. State (Ala. Crim. App. 1991), 585 So. 2d 225, 237 (excluding nurse with a relative who had suffered a nervous breakdown).

Defendant argues that Adams merely had one year of training and worked with the elderly. Defendant contends that there was no evidence that Adams came into contact with mental health experts or had greater knowledge in the area of mental health than a layperson. Defendant adds that if the State were concerned about such knowledge, all venirepersons should have been asked whether they had ever taken any courses in the mental health field.

An explanation which rests upon a lack of information about a venireperson must be closely scrutinized to insure that the reason is not pretextual, including consideration of whether the State attempted to discover the information through supplemental questions. (Harris, 129 Ill. 2d at 188, 544 N.E.2d at 386; Kindelan, 213 Ill. App. 3d at 558, 572 N.E.2d at 1144.) Harris and Kindelan, however, deal with peremptory challenges based on a lack of information about a venireperson; here, the State had information about Adams upon which it based its challenge. Defendant cites no authority for the proposition that the State had to inquire into Adams’ specific knowledge of psychology or psychiatry to sustain its burden. As to the failure to ask others about their knowledge of psychology and psychiatry, we note that Harris and Kindelan concern the State’s failure to request that supplemental questions be asked of the excluded venireperson, not others who were or were not excluded.

April Rhem — The State sought to exclude Rhem on the basis of her employment record. Rhem had last worked at a temporary employment service for two months. Previously, she had worked as an accounting clerk for seven months, a sales clerk for four months and a general office worker for three months.

Defendant argues that the explanation in Rhem’s case was pretextual because Rhem’s employment record is consistent with her status as a student. However, the State’s concern with the employment status of venirepersons may extend to those who are students. (See Evans, 125 Ill. 2d at 65, 530 N.E.2d at 1366.) Moreover, as the State notes, one of the alternate jurors accepted by the State was an African-American student, suggesting that race was not the motivating factor in this instance. In addition, we note that one juror identified by defendant as unemployed was retired, a situation which may be distinguishable from the venirepersons challenged by the State in this case.

Teresa Brantley — The State explained that it wished to exclude Brantley because she had been unemployed for 10 years. Defendant contends that this is a pretextual explanation because Brantley was acting as a mother and homemaker while her daughter was in grade school. Defendant does not cite to the record in support of this characterization. Moreover, defendant has failed to cite authority in support of the argument that a single mother or homemaker such as Brantley cannot be excluded on that basis. (Cf. State v. Guillory (La. App. 1989), 544 So. 2d 643, 650-51 (affirming exclusion based on State’s concern over the “moral implications” of persons who are unwed mothers); United States v. Williams (7th Cir. 1991), 934 F.2d 847, 850 (affirming exclusion based on prosecutor’s assumption that a single mother might not give her full attention to the trial).) Thus, it seems that deference to the trial court ruling in this respect is warranted.

Jeanell Hicks — The trial court accepted the State’s explanation that Hicks was excluded because she seemed timid and hesitant in answering the trial court’s questions. Defendant contends that the explanation is pretextual. Explanations which focus on a person’s body language or demeanor must be closely scrutinized because they can easily be used as a pretext for discrimination. (Harris, 129 Ill. 2d at 176, 544 N.E.2d at 380.) Nevertheless, hesitancy in answering a question during voir dire may be a race-neutral reason for exercising a peremptory challenge. (People v. Young (1989), 128 Ill. 2d at 19-21, 538 N.E.2d at 456-57.) Given the great deference accorded to the trial court’s ruling, which is based largely on an assessment of the State’s credibility, we cannot say that the trial court’s ruling was clearly erroneous.

Melvin Igess — The State based its peremptory challenge on two grounds. First, the State relied upon Igess’ paternity of children by two different women. Second, the State relied upon Igess’ employment record.

Defendant responds that these reasons are pretextual. Defendant argues that the State did not challenge 22-year-old John Votanek, who was also unemployed at the time of voir dire and purportedly had a similar record of prior employment. Defendant also argued on remand that none of the nonminority veniremen were asked about their paternity of children, including Randy Fone, who was divorced with a child aged seven months.

Upon close scrutiny of the record, we cannot say that the trial court’s finding was clearly erroneous. The trial court could have concluded that the paternity factor, when combined with the employment record, justified a peremptory challenge. As noted above, a venireperson may be similar in one respect to an accepted juror, yet possess a characteristic which justifies a peremptory challenge based on the totality of the circumstances. In this case, defendant has failed to demonstrate that either Votanek or Fone was similar to Igess as to both employment and paternity. Thus, a peremptory challenge against a person with both characteristics could be justified. Moreover, as mentioned in discussing venireperson Adams, Harris and Kindelan do not require the State to ask similar questions on all issues of all venirepersons.

Melanie Pinkins — The State sought to exclude Pinkins because her mother worked at Mercy Hospital, where Dr. Hemmerich (who was named as a possible defense witness) spent between five and six years of his career. Defendant argues that this explanation is pretextual, but the State’s explanation may be fairly read as a concern that Pinkins might give more credibility to Dr. Hemmerich because he had worked at the same hospital as her mother. The same could not be said of any of the accepted venirepersons.

In sum, defendant has failed to demonstrate from the record that the trial court’s determination of no intentional discrimination was clearly erroneous.

IX

Defendant next argues that the trial court erred by refusing to give defendant’s non-Illinois Pattern Jury Instruction (IPI) concerning the use of prior inconsistent statements. Defendant argues that the instruction given to the jury (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981)), which provides that prior inconsistent statements may be used only for deciding the weight of a witness’ courtroom testimony, is inaccurate in light of section 115 — 10.1 of the Code of Criminal Procedure of 1963, which provides that a witness’ prior inconsistent statement, written or signed by the witness, which describes an event or condition of which the witness had personal knowledge, is admissible as substantive evidence. (111. Rev. Stat. 1987, ch. 38, par. 115 — 10.1(cX2XA).) Defendant argues that the jury should have been instructed such that a statement from Officer Smith’s police report that defendant appeared irrational at the time of his arrest and a signed statement by Bobby Lindsey concerning the time he was to have met the other alleged conspirators on October 16 could be considered as substantive evidence.

IPI criminal instructions are preferred to non-IPI instructions where the instructions give due consideration to the applicable law. (134 Ill. 2d R. 451(a).) The IPI instruction at issue here has been described by this court as “inaccurate and unduly restrictive” following the passage of section 115 — 10.1. (People v. Wilson (1986), 149 Ill. App. 3d 1075, 1078, 501 N.E.2d 863, 865.) Nevertheless, one inaccurate instruction does not mandate a reversal per se. (People v. Vanda (1982), 111 Ill. App. 3d 551, 569, 444 N.E.2d 609, 622.) Based on this record, the refusal to issue defendant’s instruction did not amount to reversible error.

X

Finally, defendant argues that he was denied a fair trial due to the State’s comments during closing arguments. Objections to closing arguments must be made at trial to be preserved for review. (People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 743-44.) The record shows no objection to many of the comments raised here; objections to those comments are waived.

Of those comments remaining, the record does not support reversal. Attorneys are granted considerable leeway in their closing arguments; the trial court is accorded every reasonable presumption in the exercise of its discretion. E.g., People v. Simms (1988), 121 Ill. 2d 259, 269, 520 N.E.2d 308, 312.

In argument, the State attacked the honesty of defendant’s expert witness. An attorney cannot insinuate that a witness is untruthful because he is paid by the opposing party (see People v. Frazier (1982), 107 Ill. App. 3d 1096, 1102, 438 N.E.2d 623, 627), but comments similar to those at issue here have been held to be permissible argument on the expert’s credibility. (People v. Bibbs (1981), 101 Ill. App. 3d 892, 897, 428 N.E.2d 965, 969.) Thus, defendant has not shown an abuse of discretion.

The prosecutor’s comment that he and co-counsel had fulfilled their responsibility to present evidence of guilt beyond a reasonable doubt merely explained the prosecutor’s role at trial and did not attempt to put the authority of the State behind the prosecutor’s personal opinion. (See People v. Clark (1987), 160 Ill. App. 3d 877, 887, 513 N.E.2d 937, 944.) The State’s references to the victim’s family in this case did not “subject the defendant to extreme prejudice so as to warrant a reversal of his conviction.” (People v. Franklin (1976), 42 Ill. App. 3d 408, 423, 355 N.E.2d 634, 646.) Moreover, any error in this last regard was cured by the trial court sustaining the objection, as the record supports the jury’s verdict. (E.g., People v. Olivas (1976), 41 Ill. App. 3d 146, 354 N.E.2d 424.) Finally, defendant has failed to show that the cumulative effect of these comments mandates reversal. Compare People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275 (reversal), with People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945 (affirmance).

For the aforementioned reasons, the judgment and sentence of the circuit court are affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      We note that the Young court cited People v. Yonder (1969), 44 Ill. 2d 376, 256 N.E.2d 321, which defendant sought to distinguish in this appeal. However, Young is merely a specific reflection of the more general rule that imperfect jury instructions do not require a reversal where, taken as a whole, they fairly inform the jury of the applicable law, including the burden of proof. See, e.g., People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136.

      The trial court’s contempt order is the subject of a separate appeal before this court. See People v. Coulter (1992), 228 Ill. App. 3d 1014.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN RAMIREZ, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2670
    Opinion filed April 24,1992.
    Rehearing denied June 29,1992.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant Juan Ramirez was convicted of first degree murder and concealment of a homicidal death (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 9 — 3), and was sentenced to concurrent terms of 35 years and 5 years, respectively. On appeal, defendant has raised numerous issues. Our review, however, is limited to whether the trial judge erred in ruling that defendant was not entitled to a hearing to determine the prosecutor’s reasons for exercising four peremptory challenges against black venirepersons.

We remand for a hearing in accordance with Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, retaining jurisdiction to review any subsequent proceedings pursuant to People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784.

We find the following facts to be relevant to the disposition of this appeal. During jury selection, the State used four of its seven peremptory challenges to exclude black venirepersons. The State did not exercise any peremptory challenges against white venirepersons. At the end of the voir dire, defense counsel made a motion alleging that the prosecutor’s use of peremptory challenges was racially motivated, thereby entitling defendant to a Batson hearing. The trial court denied defendant’s motion after the following colloquy:

“MR. CAREY [defense counsel]: I don’t know what your procedure is for a Batson motion. I make a Batson motion that four State strikes were all black. And there is — and doesn’t appear to be any distinguishing characteristics of at least a couple that I can tell.
THE COURT: Well-
MR. MURRAY [assistant State’s Attorney]: Judge—
THE COURT: I don’t think that there is any basis for Bat-son. We have a number of blacks on this jury, you know. The fact that they struck 4 blacks is not the quantum that has to be shown, to raise that issue. As far as I’m concerned, they certainly got a quantity of blacks on this jury.
MR. MURRAY: Judge, I might also say that Batson motion points the prima facie evidence to someone of the same racial group as the defendant. So — I mean if Mr. Carey was making the motion on that basis, a prima facie basis, at this level, there is not.
THE COURT: There is not a basis for that. Certainly this is not a black defendant.
MR. CAREY: I believe the — my reading of it is a cognizable racial group being excluded, and four strikes were blacks. So that I believe each of them — the matters that the Court and the State has brought up are factors but an equal factor is the factor that I’m using for — as a basis for my motion. And we rest on that.
THE COURT: Very good, thank you. I do not find anything approaching the sufficient showing to raise Batson.”

Although the record contains biographical data on the venire members, it does not reflect the racial composition of the venire. Nor does the record indicate the racial composition of the jury despite the trial judge’s comments which indicate that there were some black jurors.

The standard for reviewing a trial court’s decision on this issue is whether the determination is against the manifest weight of the evidence. (People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234.) To establish a prima facie case of discrimination under Batson, defendant must raise the inference that the prosecutor exercised peremptory challenges to remove venire members based upon their race. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; People v. Edwards (1991), 144 Ill. 2d 108, 579 N.E.2d 336.) The defendant may rely on the fact that peremptory challenges “constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) The defendant must then show that this and other relevant circumstances raise an inference that the prosecutor used the practice to exclude the venireperson from the jury based upon his race. (Batson, 476 U.S. 79, 80 L. Ed. 2d 69, 106 S. Ct. 1712.) In deciding whether defendant met this burden, the trial court should consider “all relevant circumstances.” Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

“Other relevant circumstances” in determining whether defendant made a prima facie case of discriminatory jury selection include: a pattern of strikes against black venirepersons; the disproportionate use of strikes against such members; the level of black representation in the venire as compared to the jury; prosecutorial questions and statements during voir dire and while exercising challenges; and the races of defendant, victim, and witnesses. (People v. Garrett, 139 Ill. 2d 189, 564 N.E.2d 784.) As a general rule, however, the mere number of black venire members peremptorily challenged, without more, will not establish a prima facie case of discrimination. People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172; People v. Lockhart (1990), 201 Ill. App. 3d 700, 558 N.E.2d 1345.

We note initially that the basis for the trial judge’s denial of defendant’s motion is unclear. The judge stated that the number of black strikes did not provide a basis for a Batson claim and pointed to the presence of black jurors. However, the trial judge also indicated that defendant lacked standing because he was not black. Because the record is unclear as to whether the trial court denied defendant’s motion because defendant lacked standing or because he failed to establish a prima facie case, we consider both issues.

We initially consider the standing issue. At the time that the judge ruled, the guidelines for a Batson hearing required that defendant be a member of “a cognizable racial group” and that the excluded juror be a member of defendant’s race. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) However, the United States Supreme Court eliminated this requirement in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364, where it held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” (Powers, 499 U.S. at 419, 113 L. Ed. 2d at 419, 111 S. Ct. at 1366.) Therefore, in light of Powers, in order to have standing to pursue a Batson claim a defendant is no longer required to show that he is a member óf a cognizable racial group whose members have been excluded. People v. Edwards, 144 Ill. 2d 108, 579 N.E.2d 336.

It is well settled that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, State or Federal, pending on direct review or not yet final. (Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.) Because this case was pending on review when Powers was decided, the rule announced in Powers applies here. Accordingly, we hold that defendant had standing to object to the prosecution’s use of peremptory challenges to exclude black venirepersons from the jury. See People v. Pecar (1991), 213 Ill. App. 3d 472, 572 N.E.2d 1064, appeal allowed (1991), 141 Ill. 2d 554.

We next consider whether the evidence established a prima facie case of discrimination under Batson in light of all the relevant circumstances. We believe that the evidence in this case established a “pattern” of strikes by the State against black venire members. A “pattern” of strikes is created “where the strikes affect members of a certain race to such a degree or with such a lack of apparent nonracial motivation that it suggests the possibility of racial motivation.” (People v. Andrews (1992), 146 Ill. 2d 413, 429.) The record here shows that the prosecution exercised a total of four challenges and that all of those challenges were directed toward black venirepersons. No strikes were made against white venire members. We believe that such use of peremptory challenges suggests racial motivation and constitutes a “pattern” of strikes against blacks. See People v. Andrews, 146 Ill. 2d at 429 (“pattern” established where all of exercised strikes excluded blacks); People v. Gaston (1992), 227 Ill. App. 3d 486 (prima facie case established where four of five exercised strikes excluded blacks); People v. Kindelan (1991), 213 Ill. App. 3d 548, 572 N.E.2d 1138 (“pattern” established where all of exercised strikes excluded blacks); People v. Daniels (1987), 164 Ill. App. 3d 138, 517 N.E.2d 626 (prima facie case established where six of seven peremptory strikes excluded blacks).

In our view, the record also established the disproportionate use of strikes by the State against black venire members. The number of blacks stricken compared to the number of nonblacks stricken may reveal whether the State used a disproportionate number of strikes to exclude blacks. (People v. Holman (1989), 132 Ill. 2d 128, 547 N.E.2d 124 (no prima facie case where 10 white and 4 black venirepersons excused); People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360 (no prima facie case where twice as many nonblacks excused as blacks).) In Andrews, our supreme court found that the use of 100% of the State’s peremptory challenges, or eight of eight, to exclude blacks was a “huge disparity” which constituted the disproportionate use of strikes against blacks. (Andrews, 146 Ill. 2d at 430.) Like Andrews, 100% of the State’s exercised peremptory challenges here were used against black venire members, and no strike was exercised to exclude nonblack members. In our opinion, this disparity constitutes the disproportionate use of strikes against black venirepersons.

Thus, we believe that the evidence established both a “pattern” of strikes and the disproportionate use of strikes against black venire members. Our supreme court has described these as “two very relevant factors [which] are strongly suggestive of the inference of discrimination required for a prima facie case.” (Andrews, 146 Ill. 2d at 430.) Although we recognize that we must consider more than simply the number of black venire members excluded (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453), we find that these significant figures weigh strongly in favor of a finding that defendant raised an inference of discrimination.

The heterogeneity of the excluded venire members is also a highly relevant factor for Batson purposes. Initially, we reject the State’s claim that defendant failed to establish a prima facie case because defendant did not explain why excluded blacks were a heterogeneous group sharing only race as a common trait. The record shows that defense counsel stated that the excluded blacks were a heterogeneous group and that the trial court precluded defense counsel from pursuing the issue by its prompt ruling against defendant.

Upon review of the biographical data presented in voir dire, we conclude that the four excluded venirepersons did not share any apparent characteristics aside from race which distinguished them significantly from the accepted nonblack jurors. For instance, three of the excluded venirepersons were married, and one was single. Most of the accepted white jurors were married, although several were single. Two of the excluded venirepersons had children, one with young children and one with adult children. Two of the excluded venire members had no children. Of the accepted white jurors, most of the married jurors had either young or adult children. Therefore, we discern no difference in the marital status and family life of the excluded and accepted jurors. Nor do we see a difference between the groups based upon occupation. The excluded jurors were a college teacher’s assistant, a record clerk, an assistant supervisor in a company and a watchman. Among the accepted jurors was a college teacher, a security guard and a company manager. Finally, we note that three of the excluded venirepersons had relatives who were crime victims: sister murdered; brother paralyzed in robbery; and uncle injured in hit-and-run traffic accident. The accepted white jurors, however, had similar experiences: friend’s daughter was murdered; daughter mugged and robbed; and wife became epileptic in a car accident. The fact that all of the excluded venirepersons were men is insignificant when we consider that 7 of the 12 jurors were men. Based upon the foregoing, we conclude that the excluded blacks were heterogeneous as a group and substantially similar to the accepted, white jurors.

We are unpersuaded by the State’s suggestion that the presence of some blacks on the jury negates a prima facie case of discrimination. While this factor is relevant, it is insufficient to defeat a prima facie case of discrimination established by the evidence. (Andrews, 146 Ill. 2d at 433.) Our supreme court in Andrews wrote: “The inquiry *** is whether the State discriminated against the [excluded] black venirepersons, not whether the State failed to discriminate against the *** accepted black jurors.” (Emphasis in original.) (Andrews, 146 Ill. 2d at 433.) If the State excludes one black venireperson on the basis of race, Batson is violated regardless of how many black venirepersons are not excluded. (People v. Andrews, 146 Ill. 2d 413; People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) Indeed, our courts have repeatedly found a prima facie case established despite the presence of blacks on the jury. See People v. Andrews, 146 Ill. 2d 413; People v. Harris, 129 Ill. 2d 123, 544 N.E.2d 357; People v. Nicholson (1991), 218 Ill. App. 3d 273, 577 N.E.2d 1313.

The State also maintains that defendant failed to properly preserve the Batson claim because the record fails to disclose the race of the venire members and thus precludes a comparison of that number to the number of blacks impaneled. Although such a comparison is a relevant factor (People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360), we do not believe such absence overcomes the evidence in favor of a prima facie case. The State failed to provide the missing figure and thus cannot argue that such comparison would weigh against or negate a prima facie case. Such absence renders this a neutral factor in our analysis. People v. Andrews, 146 Ill. 2d 413.

We conclude that the above factors in combination were sufficient to raise the inference of discrimination required to establish a prima facie case under Batson. The record presented a pattern of strikes against blacks, the disproportionate use of strikes against blacks, and an excluded group of venirepersons that was heterogeneous. To the extent that the trial court denied defendant’s motion based upon the failure to establish a prima facie case, we find such determination contrary to the manifest weight of the evidence.

In light of our determination that defendant established a prima facie case, we remand this cause to the circuit court of Cook County for a hearing to allow the State to present race-neutral explanations for the use of its peremptory challenges. The trial court shall then determine whether the State’s explanations are sufficient to rebut defendant’s prima facie case.

Our supreme court has directed that where such remand for Bat-son proceedings is necessary, “the correct procedure” is for this court to withhold disposition of other unrelated issues, retaining jurisdiction to consider them after the Batson proceedings. (Garrett, 139 Ill. 2d at 195, 564 N.E.2d at 787; see also People v. Gaston, 227 Ill. App. 3d at 490; but cf. People v. Nicholson, 218 Ill. App. 3d 273, 577 N.E.2d 1313.) We therefore retain jurisdiction to review the trial court’s ruling after the Batson hearing, and if necessary, to address the other issues raised by defendant in this appeal.

Reversed and remanded with directions.

EGAN, P.J., and LaPORTA, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR DENT, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3394
    Opinion filed April 27,1992.
    Rehearing denied June 23,1992.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and John E. Gilhooly, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant Arthur Dent was convicted of first-degree murder. Defendant appeals his conviction, arguing that he was not proven guilty beyond a reasonable doubt, that the prosecution’s comments regarding the cause of decedent’s death were improper and prejudicial and that the prosecution’s question to defendant of whether it was an initiation rite of his gang to kill a human being was improper and prejudicial.

Defendant was arrested on October 26, 1988, and charged with first-degree murder for the shooting death of decedent Andre Porter. Police officer Andre Mack testified that on October 19, 1988, at approximately 1:30 a.m., he was patrolling the vicinity of 4130 South Drexel Boulevard and noticed a person lying in the parkway as if he were sleeping. Since this was a common occurrence, Mack did nothing at this time. Mack drove by this same parkway at approximately 5:30 a.m. and noticed the same figure there. As Mack approached, he observed that it was a body of a male lying facedown. Mack examined the body and discovered that the person was dead. Mack also testified that 820 East Bowen is approximately one-half block away from where the body was found.

Next, the prosecution called Detective George Carey, who testified that at approximately 6 a.m. on October 19, 1988, he was assigned to investigate decedent’s death. Carey arrived on the scene to observe that the body was still lying in the facedown position. Upon closer examination of the body, Carey discovered gunshot entry and exit wounds on the decedent’s arm and a reentry wound in the decedent’s left chest area. Carey testified that he found no blood around the body.

Mark Capers testified for the prosecution as an occurrence witness. Capers testified that he is a member of the Black Gangster Disciples street gang (Disciples). The Disciples’ “territory” includes the housing project located at 733 East Bowen where Capers was residing at the time of decedent’s death. Capers had known decedent for about four years and testified that decedent was also a member of the Disciples. Capers claimed that he knew defendant as Prince Steve of the enemy street gang, the King Cobras (Cobras). Capers stated that the title name “Prince” referred to a leadership position within the Cobras. On October 18, 1988, at approximately 7:30 p.m., Capers was on the second-floor balcony at 820 East Bowen with four or five other people. Decedent arrived at 8 p.m. At 10:15 p.m., defendant and Ralph James appeared on the balcony, reached into their jackets and pulled out guns. From a distance of four feet away, defendant and James shot in the direction of decedent. The group ran to the stairs. Capers testified that the following morning he was informed that Porter was dead. Capers went to the police station to reveal what he knew about the shooting. On October 26, 1988, Capers viewed a formal lineup and identified defendant as being one of the shooters.

Kobie Hunter testified that on October 18, 1988, at 9:15 p.m. he went to the second-floor balcony at 820 East Bowen. Hunter did not know decedent and had never seen him before that night. At 10:15 p.m., defendant and James arrived on the balcony. Hunter testified that defendant said something to decedent and pulled a gun out of his pocket. When Hunter saw the handle of the gun, he started to run. Hunter heard three shots. Hunter called the police to report that his friend Jerry Coleman had been shot. On October 26, 1988, Hunter was taken to the police station to view a formal lineup. Hunter identified defendant as the person who did the shooting. Hunter and also Darryl Phillips, another occurrence witness, testified that the lighting condition on the balcony the night of the shooting was bright and that they had no problem seeing defendant’s face. Hunter and Phillips both made in-court identifications of defendant. Hunter further stated that he was only testifying because he was subpoenaed.

The parties stipulated that Dr. Choi, a deputy medical examiner, who performed the autopsy on decedent, would testify that he found internal bleeding in decedent’s chest cavity and that a bullet had penetrated the left upper lung and left ventricle of the heart. Dr. Choi would have testified that decedent’s death was a homicide caused by a gunshot wound.

Police officer John Robertson testified that he spoke with the occurrence witnesses, Hunter, Phillips and Capers, who gave him the names of two people involved in the shooting, Arthur Dent, also known as “Prince Steve” and Ralph James, also known as “Chicken Wing.” Robertson arrested defendant at his home. Defendant stated that he was the leader of the Cobras and that James was a “soldier” in the Cobras. Robertson testified that defendant was proud of his position in the Cobras and told Robertson that he would not go out on “hits” (shootings to kill people), but rather, would order them.

Lastly, defendant testified that he was not in a gang at the time of decedent’s shooting death. Defendant testified on direct examination that he quit the Cobras in 1985, but on cross-examination, he claimed that he quit in 1987. Defendant stated that he went to the second-floor balcony and spoke with decedent about purchasing marijuana. Decedent pointed out a male on the playground below the balcony as a person who would sell marijuana to defendant. Defendant further testified that he thanked decedent for the information and turned to go down the stairs, when he heard a loud noise like a gunshot. Defendant ran down the stairs and stopped at the bottom, at which time he heard three or four more shots. Defendant also testified that he was not friends with “Chicken Wing,” and that “Chicken Wing” had joined the Cobras after he had quit. Defendant denied telling police that he was the leader of the Cobras or that he was friends with “Chicken Wing.” Defendant claimed that the leader of the Cobras is known as the “King.” There are smaller leaders under the “King” known as “generals” and “officers.” Defendant denied having a leadership position in the gang, even though he was known as “Prince Steve.” Defendant stated that he was nicknamed after the rock star “Prince.”

After closing arguments, the jury found defendant guilty of first-degree murder. The trial court sentenced defendant to 30 years’ imprisonment in the Illinois Department of Corrections.

Defendant argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that defendant’s actions caused decedent’s death. The prosecution argues that the circumstantial evidence was sufficient to prove defendant guilty of murder beyond a reasonable doubt. Testimony at trial revealed that defendant fired three or four shots directly at decedent from a distance of three to four feet. Decedent’s body was found a few hours after the shooting only one-half block away from the scene of the shooting.

The standard for reviewing a conviction which is challenged on the sufficiency of the evidence is whether in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) Once a defendant has been found guilty of a crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion. (Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.

Defendant argues that all the evidence against him is circumstantial and that such evidence was insufficient to prove him guilty of murder. Circumstantial evidence is proof of facts or circumstances that give rise to reasonable inferences of other facts that tend to establish the guilt or innocence of the defendant. (People v. Jenkins (1983), 117 Ill. App. 3d 33, 452 N.E.2d 867.) The fact finder(s) do not have to be satisfied beyond a reasonable doubt as to each link in the chain of circumstantial evidence (People v. Hall (1986), 114 Ill. 2d 376, 409, 499 N.E.2d 1335, 1348); rather, it is sufficient if all the evidence taken as a whole satisfies the fact finder(s) beyond a reasonable doubt of defendant’s guilt. (Hall, 114 Ill. 2d at 409, 499 N.E.2d at 1348.) It is well-established law that a defendant can be convicted of a crime solely on the basis of circumstantial evidence. People v. Bennett (1987), 162 Ill. App. 3d 36, 515 N.E.2d 840; People v. Edwards (1991), 218 Ill. App. 3d 184,196, 577 N.E.2d 1250, 1258.

Defendant argues that the State failed to prove material elements of murder, namely, proof of death and proof of a criminal agency causing death. It is true that the evidence must show “that the defendant’s act was, beyond a reasonable doubt, a contributing cause to a death such that the death did not result from a source unconnected with the defendant’s act.” (People v. Brown (1978), 57 Ill. App. 3d 528, 531, 373 N.E.2d 459, 461.) Defendant argues that the “ ‘general public’s perception’ indicates that a person shot in one arm, one lung and the heart is not going to go anywhere, let alone down a flight of stairs and half a city block. The same type of perception indicates that a person found shot to death at that time and location with no wallet or any other identification, may well have been the victim of an armed robbery.” We agree that these “perceptions” may be possible and the robbery scenario “could have” happened. We, however, are obliged to review the evidence, direct and circumstantial, in a light most favorable to the State. Collins, 106 Ill. 2d 237, 478 N.E.2d 267.

When viewed in the above light, the circumstantial and direct evidence proves beyond a reasonable doubt that defendant shot and killed decedent. Three eyewitnesses to the shooting identified defendant as one of the two gunmen. These witnesses stated that defendant pulled out a gun and shot in decedent’s direction from a distance of about three to four feet away. There was evidence that the gunmen were members of a rival gang. The medical evidence indicates a bullet traveled through decedent’s arm and lodged in his chest. Two police officers testified that there were no signs of external bleeding. Additionally, medical testimony established that decedent suffered from internal bleeding in his chest cavity.

The fact finder is not required to accept defendant’s scenario just because it was “possible.” It is the fact finder’s duty to judge the credibility of the witnesses and determine the weight to give to the evidence. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 453, 473.) Therefore, the “perceptions” and scenarios proposed by defendant are irrelevant. We find that after considering all the evidence as a whole, in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt were committed by defendant.

Defendant argues that during closing arguments, the State misstated facts in evidence and mischaracterized defense counsel’s closing argument. Moreover, defendant argues that the prosecution committed reversible error by arguing that “there was no external bleeding,” “he [decedent] died of internal bleeding” and “that all of the witnesses said the shooting happened at 820 East Bowen and the defendant got up there and said the same thing.” We find that the above comments were proper summations of the evidence or reasonable inferences drawn therefrom, and therefore, no reversible error was committed.

Attorneys are allowed great latitude during closing arguments. (People v. Amos (1990), 204 Ill. App. 3d 75, 85, 561 N.E.2d 1107, 1115.) The prosecution can base its argument on evidence presented at trial, as well as all reasonable inferences which can be drawn therefrom. (People v. Linscott (1991), 142 Ill. 2d 22, 38, 566 N.E.2d 1355, 1362.) Two police officers testified that they did not find any trail of blood leading to or from decedent’s body and that they did not observe a pool of blood under or around his body. A reasonable inference which could be drawn from this testimony is that there was no external bleeding. The prosecution’s argument that “there was no external bleeding,” thus, was proper argument. Furthermore, there was medical evidence, to which defendant stipulated, that decedent suffered a condition known as hemothorax, which in lay person’s terms is internal bleeding. This testimony, coupled with the facts that there were no signs of external bleeding and that decedent was shot in the heart, could lead to the reasonable inference that defendant died of internal bleeding. The prosecution’s comments during closing argument regarding the above were proper.

During closing arguments, defense counsel argued that the prosecution did not prove that decedent was shot at 820 East Bowen. In response, the prosecution argued that “they [Phillips, Hunter and Capers, the occurrence witnesses] said the shooting happened at 820 East Bowen and the defendant got up there and he said the same thing.” Defendant argues that the prosecution’s reply was improper and prejudicial because “[n]one of the eyewitnesses or the defendant testified they saw decedent get shot at 820 E. Bowen.” That is true; no one testified that he saw decedent get shot at 820 East Bowen. The State’s argument, however, was not that the witnesses saw decedent get shot, but rather that defendant was at 820 East Bowen when he shot directly at decedent from three to four feet away and that defendant, himself, testified that a shooting did occur at that address. Not only does defendant misstate the record, he takes the prosecution’s argument out of context. The prosecution was commenting on Capers’, Hunter’s and Phillips’ credibility by stating that even the defendant agreed that there was a shooting at 820 East Bowen. We find that the prosecution’s comment was not improper or prejudicial.

Defendant further argues that the prosecution’s reference to defense counsel’s opening statement was improper. We find, however, that the reference was harmless error. (See People v. Smith (1981), 94 Ill. App. 3d 969, 975, 419 N.E.2d 404, 408.) The prosecution commented, “At the beginning of this trial Mr. Eppenstein [defense counsel] told you *** and maybe I’m wrong but I thought I heard him say that one of the things that was not in issue was that on that particular night the victim in this case got shot and got shot at 820 East Bowen.” Defense counsel immediately objected to the comment and the trial court sustained the objection. After the objection was sustained, the prosecution made no further reference to defense counsel’s opening statement. The prosecution’s reference to defense counsel’s opening statement was not a material factor in defendant’s conviction; therefore, the comment was harmless error. See Smith, 94 Ill. App. 3d at 975, 419 N.E.2d at 408.

Next, defendant argues that it was error for the prosecution to characterize defense counsel’s theory as ridiculous, farfetched or outlandish. The Illinois Supreme Court has held that an attack on a particular theory of defense does not necessarily prejudice the defendant. (People v. Phillips (1989), 127 Ill. 2d 499, 526, 538 N.E.2d 500.) A reviewing court should assess arguments of counsel in the context of the whole trial and should sustain a conviction unless it appears that an improper comment substantially prejudiced the accused. (People v. Harbold (1984), 124 Ill. App. 3d 363, 371, 464 N.E.2d 734, 741, citing People v. Tate (1970), 45 Ill. 2d 540, 545-46, 259 N.E.2d 791, 794.) In People v. Trask (1988), 167 Ill. App. 3d 694, 521 N.E.2d 1222, the prosecution referred to defendant’s defense as a “sham” several times during closing argument. The court held that such references were not error, reasoning that the prosecution was “merely commenting on the unbelievability of defendant’s testimony. In context, such a characterization does not seem prejudicial given the evidence against defendant.” (Trask, 167 Ill. App. 3d at 713, 521 N.E.2d at 1235.) The court also found it significant that the trial court immediately sustained an objection to the argument. Trask, 167 Ill. App. 3d at 713, 521 N.E.2d at 1235.

The context of the complained-of argument in the case at bar is analogous to Trask. In the case at bar, the prosecution was commenting on how ridiculous the defense’s theory was in light of the evidence. The prosecution said: “Two different people out to kill a guy the same night. That is ridiculous.” After an objection, the trial court stated that the “jury has heard the testimony.” The prosecution went on to argue that defense counsel “mentioned this outlandish theory to you because he doesn’t want you to see what the real evidence is in this case.” Defense counsel objected to that comment, arguing that it was “[bjurden shifting.” The trial court immediately sustained the objection. Any prejudice which may have occurred because of the complained-of remarks, thus, was cured when the trial court immediately sustained defendant’s objection to the comments. Defendant was not deprived of a fair trial, thereby requiring a reversal. See Trask, 167 Ill. App. 3d at 713, 521 N.E.2d at 1235.

Defendant also argues that the above comments on the defense’s theory, coupled with other comments made by the prosecution during closing arguments, amounted to accusations by the prosecution that defense counsel was employing trickery. When read in context, it is clear that the comments which the defendant claims amount to an accusation of trickery on the part of defense counsel were made by the prosecution to convey the idea that defense counsel’s closing argument avoided the evidence actually presented at trial. The prosecution argued that defense counsel’s theory that decedent was shot by someone other than defendant at a different place and time than the shooting which occurred on the balcony of 820 East Bowen was outlandish in light of the testimony of three eyewitnesses who saw defendant shoot directly at decedent from a short distance the night he was murdered. Since the prosecution was merely charging that the defense counsel was attempting to obscure the evidence, reversible error was not committed. See People v. Brown (1977), 47 Ill. App. 3d 920, 930-31, 365 N.E.2d 514, 522; People v. Lavoy (1980), 91 Ill. App. 3d 639, 644, 415 N.E.2d 487, 491.

Defendant contends that it was improper for the prosecution to question him about gang initiation rites, namely, whether the Cobras required gang members to kill a human being in order to become a member. The defendant answered “no” to the above question. Defendant argues that the question violated the requirement of good-faith cross-examination and extremely prejudiced the defendant. Defendant contends that there was no evidence presented to support the prosecution’s inquiry. This contention is untrue. A police officer testified that defendant told him that he was a leader in a gang and that decedent was a member of a rival gang. More specifically, defendant stated that he knew decedent as the person who injured the arm of a fellow member of the Cobras.

The prosecution’s question concerning initiation was relevant to show motivation for the murder. Proof of gang membership is relevant and admissible where there is sufficient proof of a relationship between such affiliation and the crime charged, including motive or common purpose. (People v. Anderson (1987), 153 Ill. App. 3d 542, 549, 505 N.E.2d 1303, 1308, citing People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840; People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207; People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671.) When relevance is established, the evidence need not be excluded because it tends to prejudice the defendant. (Anderson, 153 Ill. App. 3d at 549, 505 N.E.2d at 1308.) We find that the prosecution’s question was relevant to show motivation, and therefore, defendant is not entitled to a new trial.

For the foregoing reasons, the conviction and sentence of the circuit court of Cook County are affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.