SECOND DIVISION
March 11, 1997
No. 1-94-1948
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
GEORGE DAVIS, ) Honorable
) Daniel Kelley,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
After a jury trial, defendant George Davis was found guilty of
first degree murder and sentenced to 50 years' imprisonment.
Defendant contends on appeal that: (1) the State committed a Batson
violation; (2) the trial court erred in granting the State s motion
in limine preventing the defense from eliciting evidence of
occurrence witnesses' gang affiliation; (3) he was provided
ineffective assistance of counsel when his counsel failed to properly
investigate defendant s prior conviction, informed the jury that
defendant would testify, and then later attempted to explain to the
jury why defendant did not testify; (4) the prosecutor made improper
remarks in closing argument; and (5) the trial court erred in relying
on defendant s causing or threatening serious harm as an aggravating
factor in sentencing. We reverse and remand.
Anthony Fisher, whose nickname was "Buck," testified that on May
29, 1991, at 1:30 a.m., he was outside of his home at 6829 S. Perry,
talking to his friend, Lethon Rogers. Fisher and Rogers talked for
about 10 or 15 minutes, and then started walking across the street.
Fisher then saw a man whom he recognized as George Harrison slowly
driving a black and gold Trans Am down the street. Fisher also saw
defendant, whom he knew from the neighborhood, seated on the front
passenger side of the vehicle. Fisher testified that he had also
seen Harrison earlier that day in the Trans Am. Fisher and Rogers
thought that it was suspicious that the Trans Am was moving at a pace
of about five miles per hour and that the occupants seemed to be
looking for someone. Fisher and Rogers therefore shouted a warning
to friends Shawn, "Kango," Emma and Sheila.
At around 2 a.m., Fisher and Rogers met up with a friend Leonard
Smith, and as the three stood near the front of Fisher's and Rogers'
homes, Fisher heard Kango say "Heads up," telling them to watch out.
Rogers did not hear the warning, but Fisher looked around frantically
before he heard a shot and then saw defendant firing a gun. The
shooting occurred about five minutes after defendant and Harrison had
slowly passed down the street. Defendant was in a standing position
in the Trans Am, which had its t-tops open. The first shots Fisher
saw defendant shoot were aimed at Shawn, Emma and Sheila, who were
standing about 15 to 20 feet away from Fisher. Fisher, Rogers and
Smith hit the ground. Defendant began shooting at them. Rogers and
Smith began running. Two more shots were fired. Defendant shot
towards Rogers and Smith, and defendant and Harrison sped off.
Rogers them came running toward Fisher saying that he had been hit.
Rogers died as a result of his injuries.
The following day, after hearing that Fisher had witnessed the
shooting, Fisher s mother sent him to Washington, D.C. Fisher
testified that he feared for his safety because defendant was a known
drug dealer. Fisher lived in Washington, D.C., for six weeks prior
to beginning college in Mississippi. Fisher returned to Chicago in
May 1992 and learned that defendant and Harrison were to be tried for
Rogers murder. Fisher then spoke with prosecutors and subsequently
testified at Harrison s trial. Fisher had been arrested on an
unrelated charge following Harrison s trial. Although a person named
Tim Hampton signed the bail bond receipt to release Fisher from jail
on that charge, Fisher testified that he did not know anyone by that
name at the address listed on the receipt.
Leonard Smith testified consistently with Fisher s testimony,
although Smith testified that he did not see the persons inside the
car. Smith admitted that he had a previous conviction for possession
of a controlled substance with intent to deliver for which he
received probation in 1992.
Detective John Halloran testified that defendant was arrested
and the Trans Am was impounded. The fingerprints in the car were
smudged and not suitable for comparison. Palmprints on the car s
exterior did not belong to either defendant or Harrison. The owner
of the car did not know defendant or Harrison and reported the car
stolen three days before the shooting.
Donald Jenkins testified following his arrest for failure to
respond to a subpoena. He testified that on April 19, 1993, two
years after the shooting, defendant confronted him and told him in
a threatening tone that neither he nor his daughter or grandson was
to attend the trial. Jenkins refused to comply with this request,
and defendant reached into his back pocket, pulled out a piece of
paper and hit it against his hand. As defendant was walking away,
he said that he should have "got" Buck (Fisher) first.
Jenkins admitted that he had pled guilty in 1988 to burglary,
received probation, and was arrested in 1978 for the filing of a
false police report, which he explained as a misunderstanding
regarding his car and a friend who took the car without permission.
James Hollins testified on defendant s behalf that he was the
owner of Good Rockin Lounge at 6950 S. Wentworth in Chicago, which
was located 2 blocks from the crime scene. Defendant entered the
lounge at 1 a.m. on May 29, 1991. Hollins routine is to empty the
bar at 1:45 a.m. so that he can close at 2 a.m. He did not know
defendant s whereabouts between 1 a.m. and when he saw him outside
the bar at about 2:15 a.m.
Steven Harris testified that he saw defendant at the lounge on
the night of the shooting. Frank Holmes testified that he drank and
shot pool with defendant at the lounge on the night in question, but
they were not together the entire time. Holmes had pled guilty in
1991 to delivery of cocaine and in 1993 to possession of a controlled
substance and unlawful use of a weapon by a felon. Phillip Mitchell
testified that at around 2 a.m. he was in front of his mother s house
at 6943 S. Wentworth, with defendant, who had been there since the
lounge closed. A lady came by and said someone had been shot.
Mitchell did not recall telling an investigator that he did not know
defendant or anyone by that name, or saying that he was not a witness
to the shooting.
Cook County State s Attorney Investigator Thomas Shine testified
in rebuttal that he had called Phillip Mitchell and Mitchell informed
him that he did not know defendant and that he had not witnessed any
shooting.
At the conclusion of this evidence, defendant was found guilty
of first degree murder and sentenced to 50 years imprisonment.
Defendant's first claim on appeal is that a Batson violation
occurred when the State exercised peremptory challenges to dismiss
four African-American veniremembers in a racially motivated manner.
Defendant claims that the trial court hastily ruled that the defense
had not established a prima case of discrimination, ordered the State
to provide race-neutral reasons for its challenges, and then
erroneously held that the proposed race-neural reasons were proper.
When the defense raised its Batson claim, it stated that "[t]his is
a pretty congenial group out there as far as their background, except
for the people who lied to us." After naming the four African-
American and one white venirepersons excused by the State, the trial
court stated that "I am not going to find that a prima facie case has
been made but I am going to ask the State to put their reasons on the
record." After the State stated its reasons for exercising its
challenges, the trial court stated that these were legitimate race-
neutral reasons.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.
1712 (1986), the United States Supreme Court outlined the procedure
for determining whether the State used its peremptory challenges in
a racially discriminatory manner. First, the trial court is to
determine whether the defendant has made out a prima facie case of
discrimination. If the trial court determines that the defendant has
made a prima facie showing, the burden shifts to the State to provide
legitimate race-neutral reasons for its use of peremptory challenges
on African-American venirepersons. Lastly, the trial court must
determine, in view of all of the relevant circumstances, whether the
defendant has demonstrated the existence of intentional racial
discrimination.
Defendant claims that the trial court did not follow the
procedure set forth in Batson. Defendant claims that because the
trial court hastily determined that he had not established a prima
facie case of discrimination, asked the State to provided its
explanations for its peremptory challenges, and then ruled on the
validity of these explanations, the issue of whether a prima facie
case had been established became moot and the only issue in this
appeal is whether the court made a proper ultimate determination on
the issue of racial discrimination.
In Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395,
405, 111 S. Ct. 1859, 1866 (1991), the Supreme Court held that
"[o]nce a prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes moot."
The Illinois Supreme Court has applied Hernandez and found that
the prima facie issue is moot regardless of whether the trial judge
prompts the State to present neutral reasons for exercising
challenges or the State defends its use of peremptory challenges
without any prompting by the court. People v. Hudson, 157 Ill. 2d
401, 626 N.E.2d 161 (1993). People v. Mitchell, 152 Ill. 2d 274,
604 N.E.2d 877 (1992).
Our case is similar to People v. Thomas, 266 Ill. App. 3d 914,
641 N.E.2d 867 (1994). In that case, the trial court stated that,
although it did not believe that a prima facie case had been made,
it believed that some panels of the appellate court might disagree
and therefore asked the State to give its reasons for exercising its
challenges. After the State gave its reasons, the trial court again
stated that no prima facie case had been made and then discussed why
it believed the State presented race-neutral reasons for striking
the venirepersons. The appellate court determined that when the
trial court ruled on the ultimate issue of purposeful
discrimination, the issue of whether defendant established a prima
facie case became moot. We reach the same conclusion here and,
thus, need only address the ultimate issue of whether there was
intentional discrimination.
The State claimed that it excused venireperson Ruth Ewing
because defendants frequently turn themselves in to her husband,
investigative reporter Russ Ewing. Sean McGee was excused because
he spent two years of college as a criminal justice major and the
State felt that he would be too sympathetic toward the defendant and
possibly lead the jury down the wrong path. Willie Saffold was
removed because the State was concerned he could not pay attention
to detail since he could not remember his children's ages, he did
not work and he answered questions incorrectly on his juror
questionnaire. We agree with the trial that these were valid
reasons for exercising peremptory challenges.
However, we reach a different conclusion from the trial court
on the State's excusal of Bertha White. The prosecutor claimed that
he excused White because she "has a son approximately the
defendant's age; we felt that she would be very sympathetic towards
[defendant]." In order to satisfy the second prong of the Batson
analysis, the prosecutor's explanation for excusing the venire-
person need not be persuasive or even plausible. Purkett v. Elem,
514 U.S. 102, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995). However,
the persuasiveness of the justification becomes relevant at the
third stage of the Batson proceeding when implausible or fantastic
justifications are likely to be found pretexts for discrimination.
Purkett, 514 U.S. at _, 131 L. Ed. 2d at 839, 115 S. Ct. at 1771.
The record here reveals that the prosecutor's explanation for
excusing White because her son was "approximately" defendant's age
was clearly pretextual. White's son was only 21 years old at the
time of trial, while defendant was 36 years old. Furthermore, the
prosecutor accepted other venirepersons with children closer in age
to defendant. The prosecutor accepted a white juror whose son was
in his late 20s. See People v. Harris, 129 Ill. 2d 123, 544 N.E.2d
357 (1989)(if a prosecutor strikes a minority venireperson for
possessing certain characteristics but does not reject a nonminority
juror who shares the same characteristics, there is a presumption
that the prosecutor's explanations were pretextual). If the
prosecutor truly did not want jurors with sons close to defendant's
age, the white juror would have been the more logical venireperson
to excuse. The State also accepted two African-American jurors
whose sons were in their middle thirties. The fact that the sons of
these two African-American jurors matched defendant s age more
closely than White s son further underscores the fact that the
State s reason for excusing White was pretextual.
The State claims that the prosecutor asserted two distinct
reasons for excusing White, one, that her son was approximately
defendant's age, and two, that the prosecutor believed that she
would be very sympathetic to defendant. Our review of the
prosecutor's explanation, quoted above, for excusing White reveals
a link between her son's age and the prosecutor's belief that she
would be sympathetic to defendant. The prosecutor was essentially
stating that he believed White would be very sympathetic to
defendant because she had a son close to defendant s age. The
prosecutor offered no other reason for believing White would be too
sympathetic toward defendant. However, White certainly would be no
more sympathetic toward defendant than those chosen jurors with sons
even closer to defendant's age. We therefore conclude that the
State's explanation for dismissing juror White was pretextual, and
for this reason we reverse defendant's conviction and remand for a
new trial.
We address the following issues that may arise on remand, as
well as the ineffective assistance of counsel claim, which would
have been a basis for reversal even if there had been no Batson
violation. We first turn to the issue of whether defendant should
have been allowed to introduce testimony that the State s witnesses
belonged to the same gang as the deceased. Although defendant was
not a gang member, defendant claims that the State's witnesses gang
membership was relevant to show their bias in the form of sticking
together and testifying consistently with each other, and to rebut
the impression cultivated by the State that its chief witness
Anthony Fisher, was a well-behaved college student.
Defendants have a constitutional right to cross-examine
witnesses for the purpose of showing bias, prejudice, or a motive to
testify falsely. Ill. Const. 1970, art. I, 8. While defendants
are granted wide latitude in conducting cross-examination to show
bias, a trial court may limit such an inquiry in order to avoid
harassment, prejudice, confusion of the issues, repetitive or
irrelevant testimony, or the introduction of remote or uncertain
evidence. People v. Jefferson, 260 Ill. App. 3d 895, 631 N.E.2d
1374 (1994). A trial court's limitation of the defendant's attempt
to show bias will be reversed only if the court abused its
discretion, resulting in manifest prejudice to defendant.
Jefferson, 260 Ill. App. 3d at 904.
In support of the admission of this gang evidence, defendant
relies on People v. Gonzalez, 104 Ill. 2d 332, 472 N.E.2d 417
(1984), wherein the Illinois Supreme Court found that the trial
court erred in preventing defendant from cross-examining a key State
witness on his gang affiliation. In Gonzalez, the defendant had
recently withdrawn from gang membership. The gang, and particularly
the key witness testifying against defendant, had threatened to
"get" defendant and his family if defendant did not renew his gang
membership. The court found that evidence of the witness' gang
membership should have been admitted at trial since the defense
theory was that defendant was being framed and the witness had a
motive to testify falsely either to "get" defendant or to avoid
being implicated in the crime. Therefore, evidence of the witness'
gang affiliation was relevant to the trial.
The instant case, however, bears more similarity to People v.
Jefferson, 260 Ill. App. 3d 895, 631 N.E.2d 1374 (1994), where the
witness' gang membership was excluded since it was completely
unrelated to the crime and in no way relevant to the defense theory.
In our case, defendant has not alleged that State witnesses had a
motive to falsely accuse him. There was no evidence of any gang
retaliation or gang rivalry. The issue of gangs is completely
immaterial to the case and therefore properly excluded from trial.
Furthermore, while defendant claims that the prejudicial impact of
excluding Anthony Fisher's gang affiliation was heightened by the
fact that the prosecution portrayed Fisher as a college student, the
defendant brought into question Fisher's credibility by informing
that jury that Fisher had been charged with a crime and was out on
bail.
We next address whether defendant was denied effective
assistance when his counsel: (1) informed the jury that defendant
would testify, failed to investigate whether defendant had a prior
conviction and attempted to explain to the jury why defendant did
not testify; (2) failed to elicit the fact that the State s main
witness, Anthony Fisher, had attempted murder charges pending
against him; and (3) failed to take the steps necessary to prove up
a statement by Fisher to defense counsel that he wanted help from
the prosecutor. A defendant receives ineffective assistance of
counsel if his counsel s performance was so deficient that his error
deprived defendant of a fair trial. Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
In opening statement, the defense attorney informed the jury
that they would hear from defense witnesses and defendant and that
those people would testify that, at the time of the shooting, the
defendant was at the Good Rockin' Lounge and was nowhere near the
scene of the shooting. During the defense case, four witnesses
testified as to defendant s whereabouts on the night of the
shooting. Defense counsel intended to have defendant testify next
but claimed that the State had surprised him by seeking to introduce
a prior conviction of the defendant of which defense counsel was
unaware. This prior conviction was a 1986 Montana guilty plea to
two counts of criminal possession of a dangerous drug with intent to
sell. The prosecutor informed the court that he had supplied
defense counsel with certified copies of defendant s city, state,
and federal "rapsheets," which mentioned the Montana guilty plea.
Defense counsel did not deny receiving these sheets, but argued
instead that defendant s guilty plea was not a conviction because
the plea could have been withdrawn by defendant under certain
circumstances for a period of three years. The three-year period,
however, had expired and the guilty plea was never withdrawn. After
the trial court ruled that these were convictions, and that the
prosecutor could introduce them if defendant testified, defense
counsel decided to recommend to defendant that he not testify at
trial. During closing argument, defense counsel attempted to
explain to the jury why defendant did not testify by stating that,
although they did not hear from defendant, they heard from defendant
through the four witnesses who testified.
We find that defendant received ineffective assistance of
counsel when his counsel informed the jury that defendant would take
the stand, although he had not investigated or obtained a ruling on
the admissibility of defendant's prior conviction, and then drew
attention to the defendant's failure to testify, when he commented
on such in closing argument. The instant case is distinguishable
from People v. Schlager, 247 Ill. App. 3d 921, 617 N.E.2d 1275
(1993), wherein defense counsel promised the jury that defendant
would testify, but after becoming aware of defendant's credibility
problem, decided not to put on a defense, but instead argue that the
State had not proved its case beyond a reasonable doubt. The court
in Schlager found this to be trial strategy, noting that counsel
"did not exhibit a misunderstanding of the fundamental rules of
civil procedure, nor did defense counsel fail to subject the State's
witnesses to meaningful adversarial testing, nor did defense
counsel's trial strategy contain flawed legal arguments." Schlager,
247 Ill. App. 3d at 932.
Our case bears more similarity to People v. Lewis, 240 Ill.
App. 3d 463, 609 N.E.2d 673 (1992), wherein defense counsel told the
jury in opening statement that defendant gave a pretrial statement
that was exonerating. The court determined that counsel was
ineffective in promising to produce such significant exonerating
evidence, when such evidence was clearly inadmissible, and that the
failure to fulfill such promise was highly prejudicial.
In the instant case, while counsel did present some exonerating
evidence as to defendant's whereabouts at the time of the shooting,
he did not present the most important piece of evidence he had
promised to produce, defendant's testimony. The impact of a
defendant's testimony and the weight given to such testimony by a
jury is certainly greater than that of an ordinary witness.
Furthermore, it was defense counsel's own failure to investigate
defendant's plea or obtain a ruling from the court on whether the
plea was a conviction, prior to opening statement, that caused his
promise to the jury to be unfilled. This cannot be deemed trial
strategy. Had the prosecutor been the one to comment on defendant's
failure to testify, this would clearly have been prejudicial error.
Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct.
1229 (1965). Here, defendant was prejudiced by his own counsel's
emphasis on defendant's failure to testify. This error alone would
have given us sufficient basis to reverse defendant's conviction.
Turning to defendant's next claim of ineffective assistance of
counsel, we do not find that counsel was ineffective in failing to
elicit the fact that the State's chief witness, Anthony Fisher, had
attempted murder charges pending against him. Rather, we find this
to be trial strategy. Had counsel introduced evidence of Fisher s
pending attempted murder charges in order to show that Fisher s
testimony was motivated by a desire to obtain favorable treatment
from the State, the State would have elicited evidence from Fisher
that, prior to being charged, he had testified at codefendant
Harrison s trial consistently with how he had testified at
defendant s trial. Thus, defendant would have derived no benefit
from defense counsel eliciting evidence of Fisher s charge.
Defendant also claims that his counsel was ineffective in
failing to take the steps necessary to prove up a statement by
Fisher to defense counsel during a pretrial interview that Fisher
wanted help from the prosecutor on his pending charge for attempted
murder. Fisher denied making this statement, and the trial court
determined that defendant could only prove up this conversation if
defense counsel disqualified himself and then became a witness at
trial. Defense counsel instead chose not to prove up the
conversation. The trial court then struck the question and answer
regarding the conversation. It is our opinion that counsel's
decision to remain in the case rather than withdraw can indeed be
considered trial strategy.
Defendant also claims find that the prosecutor made several
improper comments in closing arguments. We agree and find that the
following comments must not be repeated on retrial. The prosecutor
improperly voiced his personal opinion and used the integrity of the
State's Attorney's office when he commented that defense witnesses
were the worst liars he had ever seen testify for a defendant. See
People v. Valdery, 65 Ill. App. 3d 375, 381 N.E.2d 1217 (1978) (the
prosecutor's repeated comments that the State's witnesses had the
highest integrity and character he had ever seen were held to be
highly prejudicial because they placed the integrity of the State's
Attorney behind the witnesses).
The prosecutor also improperly implied that an expert cannot be
cross-examined with another expert's prior diagnosis and shifted the
burden of proof when he commented that the defense attacked the
State's expert pathologist through cross-examination rather than by
the defense presenting its own expert. An expert may be impeached
with another expert's report (People v. Silagy, 101 Ill. 2d 147, 461
N.E.2d 415 (1984), and the defense had no obligation to call any
witnesses.
The prosecutor also improperly argued facts not in evidence when
he stated that the Trans Am owner's fingerprints were not found in
the car and that Fisher had stated at a previous trial that
defendant was the shooter. We also note that the prosecutor
improperly showed extreme disdain for the defense by stating in
closing argument, "[t]his is how worthless this piece of paper is,"
and crumpling up a defense exhibit which the court had admitted into
evidence.
Finally, we note that if defendant is again found guilty, the
trial court can consider as an aggravating factor the force employed
and the manner in which the crime was committed, but it must not
consider that defendant's conduct caused serious harm, since this is
inherent in the offense of murder. People v. Saldivar, 113 Ill. 2d
256, 497 N.E.2d 1138 (1986).
Accordingly, for the reasons set forth above, defendant s
conviction is reversed and this cause is remanded for a new trial.
Reversed and remanded.
Gordon, J., concurs.
Hourihane, J., dissents.
Justice Hourihane, dissenting:
The majority concludes that the State's explanation for excusing
veniremember Bertha White was "clearly pretextual" and thus
necessitated the reversal of the defendant's conviction and
sentence. In reaching this conclusion, the majority notes that when
asked to proffer a basis for his challenge of Ms. White, the
prosecutor indicated that he was challenging her because she had a
son approximately the defendant's age and he felt that she would be
sympathetic toward the defendant. The majority then concludes that
this reason was "clearly pretextual" because a white member of the
jury who also had a son approximately the defendant's age was not
challenged by the State.
I respectfully disagree for the reasons which follow. First, the
courts of this state have repeatedly recognized that the State may
legitimately exercise a peremptory challenge to exclude a
prospective juror because he or she has children of an age close to
the defendant's. See People v. Andrews, 155 Ill. 2d 286 (1993);
People v. Lovelady, 221 Ill. App. 3d 829 (1991); People v. Baisten,
203 Ill. App. 3d 64 (1990); People v. Batchelor, 202 Ill. App. 3d
316 (1990). Accordingly, there is nothing inherently suspicious or
pretextual about the State offering such a reason for excluding a
potential juror.
Second, it would be improper for us to assume, as the majority
does, that the trial court erred in finding an absence of
discriminatory intent merely because the State accepted a white
juror who possessed a similar characteristic. As our supreme court
stated in People v. Wiley, 165 Ill. 2d 259 (1995):
"In reviewing the reasons given by the State, it is
necessary to bear in mind that '"in many instances there
will be no single criterion that serves as the basis for
the decision whether to excuse a particular venireman."'
(People v. Mitchell (1992), 152 Ill. 2d 274, 295, quoting
People v. Mack (1989), 128 Ill. 2d 231, 239.) The
State's purposeful discrimination is not automatically
established by the mere coincidence that an excluded
juror shared a characteristic with a juror who was not
challenged. The excluded juror may possess an additional
trait that caused the State to find him unacceptable,
while the juror who was not challenged may possess an
additional characteristic that prompted the State to find
him acceptable to serve as a juror. [Citation] '[A]
peremptory challenge is based on a combination of traits,
and a juror possessing an unfavorable trait may be
accepted while another juror possessing that same
negative trait, but also possessing other negative
traits, may be challenged.' Mitchell, 152 Ill. 2d at
295." People v. Wiley, 165 Ill. 2d at 282-83.
In this case, the State did not challenge white veniremember
Angelo Baez though he also had a son close to the age of the
defendant. While this fact may raise an inference of purposeful
racial discrimination, such is not dispositive. People v. Mack, 128
Ill. 2d 231. The record reveals that at least three members of the
actual jury had children close to the defendant's age. Mr. Baez,
a white resident of the north side of Chicago was married and had
a 28-year-old son who was ser