People v. Bell

2022 IL App (2d) 210018-U

Opinion

2022 IL App (2d) 210018-U No. 2-21-0018 Order filed August 16, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 19 CF 862 ) WILLIE A. BELL, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court. Justices Hutchinson and Brennan concurred in the judgment.

ORDER.

¶1 Held: Defendant failed to make a prima facie case under Batson v. Kentucky that the State’s preemptory challenges to two African American female jurors were based on race. Three of the seven Batson factors weighed somewhat in favor of defendant’s challenge, while the remaining factors were neutral or weighed against the challenge.

¶2 After a jury trial, defendant, Willie A. Bell, was convicted of one count of aggravated

discharge of a firearm against a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2018)) and two

counts of aggravated discharge of a firearm (id. § 5/24-1.2(a)(2)) and sentenced to concurrent

prison terms of 37 years, 26 years, and 26 years, respectively. On appeal, he contends that this 2022 IL App (2d) 210018-U

court must remand for a new hearing under Batson v. Kentucky, 476 U.S. 79 (1986) because he

made a prima facie case of racial discrimination in jury selection. We affirm.

¶3 I. BACKGROUND

¶4 During voir dire, the court and the parties referred to prospective jurors by their numbers.

The jurors directly involved in the Batson proceeding at issue here were jurors 100 and 107.

¶5 Initially, the court asked whether any of the prospective jurors, their family members, or

close friends were ever accused of, or the victim of, a serious crime. Juror 100 told the court that,

in the last year, her brother was murdered. A person had been charged but the trial was still

pending. Juror 100 did not believe that she would need to attend the trial. She stated that the case

involving her brother’s murder would not influence her decision as a juror in this case.

¶6 The parties and the court then questioned prospective jurors from the initial panel of 20.

Juror 100 stated that she worked in a Target store and was in charge of the Starbucks. She had

been there a year. She had resided in Zion for 16 years and had attended Zion-Benton High School.

She had two children, one age two who was in daycare and one age four who was in school. Juror

107 stated that she resided alone in Park City and had attended Zion-Benton High. She worked at

a small casino in Waukegan, serving refreshments and sanitizing the machines.

¶7 The parties accepted juror 57, who was born in Pakistan. The State exercised peremptory

strikes against jurors 59 and 139. Shortly afterward, the State exercised peremptory strikes against

jurors 100, 103, and 107. The record does not reveal the races of jurors 59, 139, and 103. The

proceeding continued:

“MR. McKERLIE [(DEFENSE ATTORNEY)]: We would like to make a Batson

challenge.

THE COURT: To what?

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MR. MCKERLIE: 100 and 107, these are the only two African-American ladies

that were on jury [sic] and both of these jurors have been stricken by the State.

THE COURT: 100, do you believe she is African-American?

MR. McKERLIE: Yes, I believe I have in my notes, she appeared, Mexican braids.

Her name, Number 100.

THE COURT: Jahda Berry.

MR. WEINSTEIN [(DEFENSE ATTORNEY)]: Number 107.

THE COURT: 107 appeared to be African [sic].

MR. McKERLIE: Karla Ridley. We would be asking the Court to inquire of the

State as to why both of those parties are stricken.”

¶8 The court then noted that, in a Batson challenge, the defendant must first establish a

prima facie case that the facts gave rise to an inference of purposeful discrimination. See Batson,

476 U.S. at 96. The proceeding continued:

“[Mr. McKERLIE]: As previously stated, these are the only two African-American

female jurors. There was an African-American male that was left on by the State.

These are the two African-American females. And for those reasons, that these are

like the only African-American females, the argument for the Defense [sic].”

¶9 Weinstein added that jurors 100 and 107 had answered all questions appropriately and

showed no signs of unfitness for duty.

¶ 10 The court turned to whether defendant had made a prima facie showing of discriminatory

intent. The court noted that relevant considerations include a racial identity between the defendant

and the challenged venire members, any pattern of exercising strikes against the allegedly

discriminated-against group, whether peremptory strikes were used disproportionately against that

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group, the level of minority representation in the entire venire, the prosecutor’s statements and

questions, “whether the excluded individuals were a heterogeneous group, sharing racism [sic],

only common characteristic,” and the races of the defendant, victim, and witnesses.

¶ 11 The court continued as follows:

“Here, and without getting into identity politics, the Court’s physical, visual

observations of Juror 107 would seem to suggest that she is of African-American descent.

That’s what the Defense is suggesting. Okay.

I’m not so sure about Juror 100. The court, also, or the Defense—I’m sorry, also

noted Juror 19, who, I believe, the parties agree is of African-American decent [sic].

He would appear to the Court to be such as well.

The Court also notes that Juror 57 is by her own admission of Pakistani descent.

She grew up there. She appears to be ethnically Pakistani, whatever that means.

Juror 30 appears to be of some sort of Asian descent, perhaps Filipino or somewhere

in that region of the world.”

¶ 12 The court noted that, although Batson prohibits both racial and gender discrimination, it

had found no authority for making African-American women a recognized group for Batson

purposes. It found that the State’s questions to jurors 100 and 107 did not show any discriminatory

intent and differed little from the defense’s questions. The court concluded that defendant had not

made a prima facie showing, and it denied the Batson challenges.

¶ 13 Juror selection continued. The court told the parties:

“The Court had an opportunity to look at Juror 100, again.

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I understand why you brought the Batson challenge. Could be that she would

identify that she is African-American, I don’t know, but, in any event, it doesn’t change

the Court’s analysis based upon the totality of the questioning and evidence and answers.”

¶ 14 After a recess, juror 70, an African-American woman, was questioned in chambers. She

stated that, the previous year, she had been charged with driving under the influence of alcohol

(DUI). She had been tried and placed on supervision. She had no felonies. However, her older

brother had been in and out of prison repeatedly and was currently serving a lengthy term for the

robbery of a service station, in the course of which he shot a clerk. Her adopted brother had had

several run-ins with the law. Her father had long been in and out of prison.

¶ 15 After other venire members were questioned, the proceeding returned to juror 70. She

stated that she had recently become unemployed because of COVID-19 but had previously worked

for 15 years with a hotel chain. Before the pandemic hit, she found a job in pet care.

¶ 16 After the 12 jurors were selected, there came voir dire for alternate jurors. Each party

received a peremptory strike. After the first alternate juror was chosen, juror 70 came up as a

prospective alternate. The State exercised a peremptory strike against her, based on her responses

to the private questioning. Defendant made a Batson challenge, stating that of the four African-

Americans in the venire, the State had made peremptory strikes against three.

¶ 17 The court asked the State for argument on whether defendant had made a prima facie

showing. The State argued that its questions to juror 70 were similar to those to other venire

persons and that she and her family had been heavily involved in the criminal justice system,

especially in Lake County. The court agreed, observing that juror 70 and her family had been

“swimming in this criminal justice system for generations.” Although the State had not challenged

juror 70 for cause, there would have been sufficient cause in that the State could petition to revoke

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her supervision for DUI and thus expose her to potential jail time, which could influence her as a

juror. And, “if there are grounds for cause, then we never get to Batson.” Voir dire soon

concluded.

¶ 18 After the jury trial, defendant was convicted of one count of aggravated discharge of a

firearm against a peace officer and two counts of aggravated discharge of a firearm. In moving

for a new trial, he raised the Batson issue summarily but did not argue it at the hearing on the

motion. The trial court denied the motion and sentenced defendant to concurrent prison terms of

37 years for the first conviction and 26 years for the other two. This timely appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant contends that the trial court erred in rejecting his Batson challenge to

jurors 100 and 107. Defendant argues that the court misapplied the law and that he met Batson’s

threshold for a prima facie showing of discriminatory intent, thus shifting the burden to the State.

¶ 21 We note that, although defendant at some points argued to the trial court that the State was

discriminating against African-American women, his claim on appeal is limited to race-based

exclusion. Further, although defendant raised a Batson challenge to the exclusion of juror 70, he

does not do so here (although he refers to the proceedings as to juror 70 in some respects). Thus,

we consider only whether defendant established a prima facie case of impermissible race-based

exclusion of juror 100 or 107.

¶ 22 The State may not use its peremptory challenges to exclude otherwise qualified venire

members from the jury based solely on their race. Batson, 46 U.S. at 89; People v. Payne, 2015

IL App (2d) 120856, ¶ 42. Batson challenges are subject to a three-step process. First, the

defendant must make a prima facie showing that the State exercised a race-based peremptory

challenge. Batson, 476 U.S. at 96; People v. Easley, 192 Ill. 2d 307, 323 (2000). To do so, the

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defendant must demonstrate that relevant circumstances raise an inference of purposeful

discrimination based on race. Batson, 476 U.S. at 96; Payne, 2015 IL App (2d) 120856, ¶ 42.

Among such circumstances are (1) racial identity between the defendant and the excluded potential

juror(s), (2) a pattern of strikes against those in the alleged racial group, (3) a disproportionate use

of peremptory strikes against members of that group, (4) the level of representation of the group

in the venire versus their representation in the jury, (5) the prosecutors’ questions and statements

during the voir dire and while exercising the peremptory strikes, (6) whether the stricken jurors

belonged to a heterogeneous group with race as their only common characteristic, and (7) the race

of the defendant, witnesses, and victims. People v. Williams, 173 Ill. 2d 48, 71 (1996).

¶ 23 If the trial court finds that the defendant has established a prima facie case, the burden

shifts to the State to articulate a race-neutral explanation for excluding each venire member in

question, subject to any rebuttal by the defendant. Batson, 476 U.S. at 97; Easley, 192 Ill. 2d at

323-24. At the third stage, the court decides whether the defendant has proved purposeful

discrimination. Easley, 192 Ill. 2d at 324.

¶ 24 “Because the trial court is in a superior position to assess and evaluate the credibility of

those involved in the proceeding, a trial court’s determination with respect to a defendant’s Batson

claim is entitled to great deference and will be disturbed on appeal only if manifestly erroneous.”

People v. Wiley, 165 Ill. 2d 259, 274, (1995). Therefore, any ambiguities in the record, such as

those pertaining to the race of a venire member, must be resolved against the defendant. People

v. Johnson, 183 Ill. 2d. 176, 190 (1998).

¶ 25 We turn to the challenges to jurors 100 and 107. Defendant contends first that the trial

court misapplied Batson by failing to focus on the specific group against which he alleged

discrimination—African-Americans—and instead focusing on whether certain venire members

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belonged to various nationalities. Defendant notes the court’s comments that juror 57 appeared to

be “ethnically Pakistani, whatever that means” and that juror 30 appeared to be “of some sort of

Asian descent, perhaps Filipino.” Further, the court observed that, in addition to striking jurors

100 and 107, the State also struck “non-minority members of the panel.”

¶ 26 We agree with defendant to the extent that the foregoing references were not germane to

the Batson analysis, given that defendant was contending that the State was discriminating against

certain venire members based on their race, not their national origin. However, reading the report

of the voir dire as a whole, we conclude that any error was harmless. In applying the Batson test,

the court understood that the issue was racial discrimination, and it properly analyzed defendant’s

claim on that basis. Moreover, in referring to “non-minority members of the panel,” the court was

necessarily referring to members who were not African-American. In any event, we review the

court’s judgment, not its reasoning (People v. Mueller, 2018 IL App (2d) 170863, ¶ 16), and we

shall evaluate defendant’s argument accordingly.

¶ 27 We consider the Batson factors in turn, keeping in mind that they are not necessarily

exclusive and that the fundamental question is not how many factors may be ticked off on each

side but whether, as a whole, the record supports disturbing the trial court’s ultimate finding.

¶ 28 The first factor—the defendant’s race and that of the prospective jurors—favors defendant.

The court agreed that defendant is African-American as was at least one, and likely both, of the

stricken jurors. Moreover, the court stated that its decision would have been the same whether or

not both jurors 100 and 107 belonged to the same race as defendant.

¶ 29 The application of the second factor—whether there was a pattern of strikes against

African-American members of the venire—is of ambiguous import. It is difficult to characterize

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two peremptory challenges against members of a particular group as a “pattern,” even among a

relatively small number of peremptory challenges in total. We consider this factor neutral.

¶ 30 The application of the third factor—whether a disproportionate number of peremptory

strikes were made against African-Americans in the venire—requires a more detailed analysis.

The parties agree that the total venire consisted of 40 prospective jurors. Also, at the time of the

Batson challenge, the State had exercised two peremptory strikes against African-Americans

(jurors 100 and 107) and three peremptory strikes against jurors 59, 103, and 139, whose racial

identity is not evident from the record, meaning that we must presume that they were not African-

American (Johnson, 183 Ill. 2d. at 190). Of the remaining venire members, we know only that

one, whom the State accepted, was an African-American male. We do not know the racial

identities of the remaining jurors other than juror 70, who had not yet been excluded.

¶ 31 Defendant also notes that, after the trial court resolved the Batson challenge to the

exclusion of jurors 100 and 107, the State used three peremptory strikes against potential alternate

jurors, including juror 70 and two jurors whose racial identities are unknown from the record. The

trial court concluded that juror 70 would properly have been stricken for cause. On appeal,

defendant does not contest this conclusion. Thus, to the extent that the State’s use of peremptory

strikes long after the ones against jurors 100 and 107 sheds any light on its intention earlier (a

difficult matter), it does not aid defendant. Before the Batson ruling at issue, the State had used

three of five peremptory strikes, or 60%, against African-Americans. In all, the State used four of

eight peremptory strikes, or 50%, against African-Americans, and one of these strikes was

supported by a race-neutral reason that the trial court accepted in full. We conclude that the third

factor militates somewhat in favor of defendant, but by no means compellingly.

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¶ 32 We turn to the application of the fourth factor—the level of representation of African-

Americans in the venire compared to the level of representation in the final jury. In this regard,

we know that there were 40 people in the venire and 12 jurors plus two alternates. However, the

record reveals no more than four venire members whom we know to be African-American and no

more than one African-American whom we know to have served on the 12-person jury. Thus, as

best we can say, the venire was 10% African-American and the jury was 8.5% African-American.

Counting the two alternate jurors, we can lower the latter figure to 7.3%. The disproportionality

between the percentage of African-Americans in the venire and the percentage on the jury is not

trivial, but the lowest figure of the three is still 73% of the highest. This factor can be taken to

indicate discriminatory intent, but it is far from compelling.

¶ 33 As to the application of the fifth factor—the questions that the prosecutor asked the venire

members—the trial court correctly noted that jurors 100 and 107 were asked the same questions

as were the other venire members. Therefore, this factor favors the State.

¶ 34 The application of the sixth factor—whether the stricken jurors belonged to a

heterogeneous group having nothing significant in common but race—is less clear. Partly this is

because it involves only two stricken jurors; thus, the relative absence of common characteristics

besides race is not altogether remarkable. Nonetheless, jurors 100 and 107 did have some

nonracial characteristics in common: both were female, had attended Zion-Benton High School,

and worked in service jobs that involved regularly serving food and drink to members of the

general public. On the other hand, juror 100 had two small children, and her brother had been

murdered recently, while juror 107 lived alone, had no children, and did not state that anyone close

to her had been the victim of a crime. The ages of these two venire members are not apparent from

the record and, unlike the trial court and the attorneys, we cannot estimate their ages by their

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appearance. Given the mix of similarities and differences, and the limited information of record,

we find this factor neutral.

¶ 35 The seventh and final factor—the racial identities of the defendant, witnesses, and

victims—is one on which defendant did not rely at any stage of the trial and does not cite on appeal.

Therefore, he has forfeited reliance on this factor, and, by default, it must be counted against him.

See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (points not argued are forfeited).

¶ 36 Summarizing the results of our analysis, we find that of the seven Batson factors, only the

first, third, and fourth favored the Batson challenges to jurors 100 and 107, and these did not do

so with great force. The remaining four factors were neutral or unfavorable. Moving from the

trees to the forest, we cannot say that the overall circumstances warrant a conclusion that the trial

court’s rejection of the Batson challenges was manifestly erroneous. Wiley, 165 Ill. 2d at 274.

Therefore, defendant’s appeal fails.

¶ 37 III. CONCLUSION

¶ 38 For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

¶ 39 Affirmed.

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