2021 IL App (1st) 171839-U No. 1-17-1839 Order filed February 5, 2021 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 4633 ) JAMES DENT, ) Honorable ) Angela M. Petrone, Defendant-Appellant. ) Judge, Presiding.
JUSTICE JOHNSON delivered the judgment of the court. Justice Harris concurred in the judgment. Presiding Justice Mikva specially concurred.
ORDER
¶1 Held: Defendant forfeited review of his claim that the State’s reason for striking prospective juror Dowdy violated Batson where he failed to object in the trial court; defendant waived any claims on review regarding the State’s reasons for striking prospective jurors Webb Hill and Williams Peck where he made no substantive arguments on those claims in his brief; the trial court’s finding that the State’s offered reasons for striking prospective jurors Meiley and Clesen were not racially motivated was not clearly erroneous where such reasons were not inherently discriminatory and therefore race-neutral. No. 1-17-1839
¶2 Following a jury trial, defendant James Dent (defendant) was convicted of delivery of a
controlled substance. Based on his criminal background, defendant was sentenced as a Class X
offender to an eight-year prison term. On appeal, defendant contends that he is entitled to a new
trial because the State violated Batson v. Kentucky, 476 U.S. 79 (1986) by using all of its
peremptory strikes on five African-American venirepersons and providing pretextual reasons for
striking three of them. For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 The evidence presented at trial reveals that defendant was arrested on February 25, 2016,
and charged by indictment with two counts of delivery of less than one gram of a controlled
substance. Defendant rejected a plea agreement for a five-year sentence from the State and instead
elected to proceed to a jury trial. As defendant has only raised one issue on appeal related to jury
selection, we will confine our discussion of the underlying facts relevant to those pretrial
proceedings.
¶5 The record reflects that the trial court conducted voir dire of prospective jurors on May 30,
2017. There was a total of 34 prospective jurors separated into two groups and questioned for jury
selection. The first group consisted of 26 persons: (1) Guiseppe Pallazzolo, (2) Silviane
Magallanes, (3) Eva Gonzalez, (4) Ahmed Malik, (5) Charles Servidio, (6) Miss Dowdy 1, (7)
Shelia Lufrano, (8) Edward Agase, (9) Maria Ramirez Dias, (10) Frances Ferro, (11) Glynnis
Webb Hill, (12) James Janetopoulos, (13) Charles Grier, (14) Richard White, (15) Janet Lamorte,
(16) Carla Labriola, (17) Richard Hawke, (18) Angela Whitten, (19) Dalvan Meiley, (20) LaToya
Williams Peck, (21) Violet Potocki, (22) John Bobowski, (23) Paula Putziger, (24) Gloria
1 The record does not indicate a first name for Miss Dowdy.
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Rodriguez, (25) Nicole Kaffel, and (26) Shantil Clesen. The second group consisted of eight
persons: (27) Rolando Delgado, (28) Diana Fenway, (29) Hiram White, (30) Peter Pechona, (31)
Travis McBride, (32) Sangar Sayyad, (33) Frances Tool Gray, and (34) Juan Alaniz.
¶6 The trial court began voir dire of each group by asking each prospective juror general
questions about whether they knew the defendant, the attorneys, police officers or other witnesses.
Next, the court admonished the group on the procedures and conduct of the trial itself. The
prospective jurors were then questioned about their ability to decide the case without sympathy,
bias, or prejudice; whether they could follow the law even if they disagree; and whether they
understood the presumption of defendant’s innocence. All of the prospective jurors indicated that
they could do so and that they understood the admonishments. The trial court also questioned the
prospective jurors about whether they could judge the testimony of police officers the same as
other witnesses, and whether they would agree not to do any outside research on the case and
instead wait until all the evidence was presented before making up their minds. All of the
prospective jurors indicated that they understood and could do so. After prospective juror, Potocki,
indicated that she was currently involved in a lawsuit, the trial court proceeded to question the
prospective jurors individually.
¶7 Once the trial court finished questioning the first group of 26 prospective jurors, the State,
defense counsel, and defendant joined the trial judge in her chambers to discuss the prospective
jurors and whether any of them required further questioning by the parties. The State noted that
prospective jurors Grier, Hawke, and Whitten failed to disclose convictions or arrests in their
backgrounds. After further questioning of those prospective jurors by the trial court, the State
moved to dismiss all three for cause. Prospective jurors Hawke and Whitten were dismissed for
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cause over the defense’s objection. The State also moved to dismiss prospective juror Lamorte for
cause. The defense moved to dismiss prospective juror Potocki for cause.
¶8 The record indicates that both the State and the defense used five peremptory strikes in the
first group of 26 prospective jurors. The defense struck prospective jurors Pallazzolo, Lufrano and
Agase without objection by the State. The State struck prospective jurors Dowdy and Webb Hill
without objection by the defense. When the State struck prospective jurors Meiley and Williams
Peck, the defense objected and raised a Batson challenge because they were African-American.
The State responded by raising a Batson challenge to all of the defense’s peremptory strikes as all
of them were for White jurors. The trial court ultimately found that both sides raised a prima facie
Batson challenge and asked for race-neutral reasons for the strikes. We begin by noting that neither
the State or defense made a reference to race as a reason for striking the prospective jurors.
¶9 With respect to Meiley, the State indicated that he was vague as to his work history and
was a shooting victim in a case where no arrest was made. The State expressed concern about his
fairness to police because no arrest was made in his case. Upon objection, the trial court indicated
that while it disagreed about the vagueness of Meiley’s work history, it found that concern about
fairness to police was race-neutral. The defense made no further objection.
¶ 10 With respect to Williams Peck, the State noted that her family member had a drug case,
she visited prisoners in the county jail who had drug cases, and defendant was charged with a drug
case. The trial court found the State’s reasons to be race-neutral. The defense made no further
objection.
¶ 11 With respect to Pallazzolo, the defense indicated that his brothers were police officers, and
they did not like how he looked at defendant. The trial court found that the juror’s family being
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officers was a race-neutral reason, but disagreed that the juror looked at defendant in any
meaningful way. The State made no further objection.
¶ 12 With respect to Lufrano, the defense indicated that her family and friends were police
officers. The trial court found the reason to be race-neutral, although it did not agree with the
reasoning. The State made no further objection.
¶ 13 With respect to Agase, the defense stated that he knew police officers, had an interest in
crime shows, and that they did not like how he looked at defendant. The trial court found that the
strike was race-neutral because the juror knew police officers. The State made no further objection.
¶ 14 The court then asked the State to give race-neutral reasons for striking Dowdy and Webb
Hill, even though the record does not indicate that the defense raised a Batson challenge to those
strikes. With respect to Dowdy, the State expressed concern that she was a psychology major and
watched The First 48 “a lot.” They reasoned that The First 48 was an inappropriate way to view
how police actually worked. The trial court disagreed with their reasoning, but nevertheless found
the reason to be race-neutral. The defense made no further objection.
¶ 15 With respect to Webb Hill, the State noted that her ex-husband had been arrested for and
convicted of several drug charges and that she might be biased against defendant. The trial court
accepted the reason as race-neutral. The defense made no further objection.
¶ 16 From the final panel, the State struck prospective juror Clesen (26), an African-American
female, and the defense raised a Batson challenge. The defense struck prospective juror Labriola
(16), a White female, and the State raised a Batson challenge.
¶ 17 The State noted Clesen’s statements that she was a theology student, visited the county jail
for ministry work in the prior 15 months, and that she watched the television program Criminal
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Minds. The State believed she would be sympathetic to defendant instead of basing a decision on
the facts of the case. The trial court indicated that it understood the “theology business” and that
she would be inclined to be more sympathetic. The court subsequently found the reason to be
race-neutral. The defense made no further objection.
¶ 18 The defense stated that Labriola had friends who were police officers and that her daughter
had been previously charged with an offense. The defense believed she was possibly judgmental.
The court found the reason to be race-neutral. The State made no further objection.
¶ 19 The trial court noted that while it did not agree with either party’s reasoning for striking
the jurors, particularly those that knew police officers, it nevertheless found that neither side
violated Batson. At this point, the court concluded that, since each side had used five strikes, they
each had two left.
¶ 20 From the second group, the State and defense each struck one prospective juror. The State
struck prospective juror Delgado (27), a Hispanic male, who was a security officer and was
preparing to be a Chicago police officer. The defense struck prospective juror Pechona (30), a
White male, whose daughter had a drug problem and had been arrested several times on drug
charges.
¶ 21 The final jury makeup was as follows: Magallanes, a White female; Gonzalez, a Hispanic
female; Malik, an Indian male; Servidio, a White male; Ramirez Diaz, a Hispanic female; Ferro, a
White female; Janetopoulos, a White male; R. White, a White male; Bobowski, a White male;
Putziger, a Black female; Kaffel, a White female; and Fenway, a White female. The two alternate
jurors were H. White, a Black male; and McBride, a White male.
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¶ 22 The case proceeded to trial on May 31, 2017, and the jury subsequently returned a verdict
of guilty. On June 22, 2017, defendant filed a motion for judgment notwithstanding the verdict or
alternatively, a new trial. In the motion, defendant alleged evidentiary errors, reasonable doubt,
errors in giving the State’s proffered jury instructions, and error in allowing the State to excuse
Clesen over the defense’s objection. The trial court denied defendant’s motion, and the matter
proceeded to sentencing.
¶ 23 During sentencing, the court noted that defendant was eligible for Class X sentencing (6 to
30 years) based on his background. As such, the court sentenced him to eight years based on the
mitigating evidence and because it believed defendant had rehabilitative potential. Defendant’s
motion to reconsider the sentence was denied and this appeal followed.
¶ 24 ANALYSIS
¶ 25 On appeal, defendant contends that he is entitled to a new trial because the State violated
Batson v. Kentucky, 476 U.S. 79 (1986), by using all of its peremptory strikes on five African-
American venirepersons and provided pretextual reasons for three of them. In support of his
contention, defendant asserts that the trial court committed clear error when it ruled that the State
provided adequate race-neutral reasons for striking three African-American jurors, specifically
Dowd, Meiley and Clesen. The defendant further maintains that the State did not accept a single
African-American to serve on the jury. Defendant argues that the reasons provided by the State
lacked credibility and were pretextual. He further alleges that the fact that the State accepted other
jurors with the same characteristics raises an inference of purposeful discrimination. Defendant
concludes that the State “purposely excused African-Americans so that not a single African-
American juror would decide his case.”
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¶ 26 Next, defendant contends that his claims were preserved in his posttrial motion. However,
as noted above, defendant only challenged the State’s strike of Clesen in his posttrial motion.
While failure to raise specific claims in posttrial motions, would ordinarily result in forfeiture of
those claims on appeal, a Batson challenge preserves peremptory strikes that were timely objected
to during voir dire for review. People v. Primm, 319 Ill. App. 3d 411, 419 (2000). As noted herein
above, defendant did in fact object to Meiley during voir dire. Thus, defendant’s claims with
respect to Meiley and Clesen were preserved for purposes of this appeal.
¶ 27 We do note, however, that defendant has forfeited any claims regarding to the State’s
peremptory challenge of Dowdy because no objection was raised during voir dire. See People v.
King, 192 Ill. 2d 189, 196 (2000). Moreover, defendant raises no specific arguments on appeal
with respect to Webb Hill and Williams Peck in his brief. Accordingly, any arguments related to
the State’s strike of those prospective jurors are also waived for review. See Supreme Court Rule
341(h)(7) (eff. May 25, 2018). See also People v. Hobson, 117 Ill. App. 3d 191, 200 (1983)
(defendant waived issues for which no argument was made in appellate brief even though he made
general allegations as to such issues). As a result, we will confine our discussion to defendant’s
claims related to the State’s strike of Meiley and Clesen.
¶ 28 The purpose of voir dire is to ascertain sufficient information about prospective jurors’
beliefs in order to allow removal of those venirepersons whose minds are so closed by bias and
prejudice that they cannot apply the law as instructed in accordance with their oath. People v.
Hope, 168 Ill. 2d 1, 30 (1995).
¶ 29 The equal protection clause of the fourteenth amendment prohibits the State from using its
peremptory challenges to exclude otherwise qualified venire persons based solely on their race.
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U.S. Const., amend. XIV; Batson, 476 U.S. at 89. In Batson, the United States Supreme Court set
forth a three-step process for evaluating whether the State used a peremptory challenge in a racially
discriminatory manner. People v. Payne, 2015 IL App (2d) 120856, ¶ 42 (citing People v. Easley,
192 Ill. 2d 307, 323 (2000)). To establish a prima facie case, the defendant must demonstrate that
“relevant circumstances” raise an inference of purposeful discrimination based on race. Batson,
476 U.S. at 96. The threshold for making out a prima facie case under Batson is not high, “a
defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to
permit the trial judge to draw an inference that discrimination has occurred.” Johnson v. California,
545 U.S. 162, 170 2005); People v. Davis, 231 Ill. 2d 349, 360 (2008).
¶ 30 Second, if the moving party makes a prima facie showing, the burden then shifts to the
nonmoving party to articulate a race-neutral explanation for excusing the venireperson. People v.
Hogan, 389 Ill. App. 3d 91, 100 (2009). A race-neutral basis means “an explanation based on
something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991).
Once the non-moving party articulates race-neutral reasons for excusing the venireperson in
question, the trial court must then move to the third step. Id.
¶ 31 At the third step, the trial court must evaluate both, the reasons the nonmoving party struck
the potential juror, as well as the moving party’s claim that the proffered reasons are pretextual to
determine whether the moving party has carried his burden of establishing purposeful
discrimination. Id. The trial court’s finding of whether purposeful discrimination has been proved
is a finding of fact and will not be overturned on review unless it is clearly erroneous. Id.
¶ 32 The Constitution forbids striking even a single prospective juror for a discriminatory
purpose. Davis, 231 Ill. 2d at 360. However, the mere fact of a peremptory challenge to a black
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venireperson who is the same race as defendant or the mere number of black venirepersons who
are peremptorily challenged, without more, will not establish a prima facie case of discrimination.
Id. at 360-61.
¶ 33 Turning to the case at bar, the record establishes that both the State and the defense had a
total of seven peremptory challenges each. Both sides used five peremptory challenges prior to
selecting the 12th juror, and both raised Batson challenges: the defense because the State struck
three African-American venirepersons, and the State because the defense struck five White
venirepersons. The trial court found that both sides established prima facie cases under Batson,
and asked both sides to offer race-neutral reasons for striking the prospective jurors.
¶ 34 Once the trial court determines that the State had an adequate race-neutral reason for
exercising the peremptory challenges, our determination is whether the trial court erred in finding
that the State’s explanation for striking the prospective juror was race-neutral and valid. See
Payne, 2015 IL App (2d) 120856, ¶ 47.
¶ 35 According to the record, the State indicated that it struck Meiley because he was vague
about his work history and was a shooting victim in a case where no arrest was made. The State
expressed concern about his fairness to police because no arrest was made in his case. The trial
court reasoned that Meiley’s background as a shooting victim in an unresolved case was a race-
neutral reason for excluding him as a prospective juror.
¶ 36 Defendant, however, asserts that the State’s explanation was pretextual because it
accepted non-African-American jurors who were similarly situated, namely Fenway and McBride.
Both Fenway and McBride were victims of crimes where the offenders were never arrested. A
review of the record establishes that defendant never made this argument before the trial court,
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and raises it for the first time on appeal. Thus, it is waived. People v. Robinson¸ 89 Ill. App. 3d
211, 213 (1980).
¶ 37 With respect to Clesen, the State indicated that it struck her as a prospective juror because
she was a theology student who recently visited the county jail for ministry work. The State
believed she would be sympathetic to defendant instead of basing her decision on the facts of the
case. The trial court found this to be a race-neutral reason for the strike. Defendant claims that the
State’s reason was pretextual because other venirepersons with degrees were accepted and H.
White, who was a pastor, was accepted as an alternate juror. The record establishes that defendant
never made this argument before the trial court, and raises it for the first time on appeal. Thus, it
is waived. Robinson, 89 Ill. App. 3d at 213.
¶ 38 Waiver aside, we reject defendant’s arguments that the State’s proffered reasons for the
strikes to Meiley and Clesen were not race-neutral. A race-neutral reason for peremptory strikes
does not need to be persuasive, plausible or make sense, but rather -is a reason that does not deny
equal protection. Easley, 192 Ill. 2d at 324. Absent an inherently discriminatory intent in the
State’s explanation, the reason offered will be deemed to be race-neutral. Id.
¶ 39 A determination is clearly erroneous when a review of the entire record leaves the
reviewing court with the “definite and firm conviction that a mistake has been made.” People
Bradshaw, 2020 IL App (3d) 180027, ¶ 37, (quoting People v. Payne, 2015 IL App (2d0 120856,
¶ 43).
¶ 40 Here, the record indicates that the State never indicated that it was striking any prospective
juror based on race. Additionally, we find that the State’s offered reason for striking Meiley did
not establish an inherently discriminatory intent; he was the victim of a violent crime that caused
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bodily injury whereas the other potential jurors experienced property damage. The level of
potential bias or prejudice against the police may differ depending on the severity of the crime.
We find that such reason is race-neutral.
¶ 41 Similarly, despite defendant’s assertion, the State never indicated that it struck Clesen
because of her education. To the contrary, the record indicated that she was a theology student
who visited inmates at Cook County jail for ministry work during the prior 15 months. She also
stated that she watched Criminal Minds. The alternate juror, H. White, who was also black and a
pastor, stated that he previously visited Cook County jail approximately 20 times over the years
for pastoral counseling, the last time being approximately two years ago, and that he watched
Grey’s Anatomy. The record also indicated other differences in their backgrounds related to
employment history and prior jury service. Defendant has not cited, nor have we found, a case that
stands for the proposition that the striking of a venireperson who is the same race and shares similar
characteristics as an accepted venireperson will be susceptible to a Batson challenge. In this case,
the State’s belief that Clesen would be inclined to be sympathetic towards defendant and not base
her decision on the evidence is sufficiently race-neutral.
¶ 42 We need not address defendant’s alternative contention that counsel was ineffective for
failing to preserve this issue for appellate review as we have determined herein that it was in fact
preserved for review.
¶ 43 Accordingly, the trial court’s decision that the State’s peremptory challenges were not
based on race was not clearly erroneous.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
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¶ 46 Affirmed.
¶ 47 MIKVA, J., specially concurring:
¶ 48 I join in all aspects of this well-crafted opinion, other than the majority’s findings,
supra ¶¶ 27, 36 and 37, that certain of Mr. Dent’s arguments were not preserved for appeal.
¶ 49 First, as to juror Dowdy (supra ¶ 27), I disagree with the majority’s conclusion that Mr.
Dent had to raise a Batson challenge after the trial court had spontaneously asked the State for its
race-neutral reasons for striking her. As our supreme court has recognized, “a trial court has the
authority to raise a Batson issue sua sponte in appropriate circumstances.” People v. Rivera, 221
Ill. 2d 481, 504 (2006). By asking the State for its race-neutral reason for striking Ms. Dowdy, the
court had begun the first step of the three-step Batson inquiry, and I agree with Mr. Dent that it
would have made little sense at that point for defense counsel to also raise an objection. I note
however, that defense counsel would be well-advised for the future to specifically note their
objections in these circumstances.
¶ 50 I would reach the merits of the Batson claim as to Ms. Dowdy, and find, for the same
reasons that the majority opinion has rejected the other Batson challenges, that this challenge
should be rejected on appeal. As the court points out, supra ¶ 38, “[a] race-neutral reason for
peremptory strikes does not need to be persuasive, plausible or make sense, but rather -is a reason
that does not deny equal protection. [Citation.] Absent an inherently discriminatory intent in the
State’s explanation, the reason offered will be deemed to be race-neutral. [Citation.]” In this case,
the State’s explanation for striking Ms. Dowdy was their concern that she was a psychology major
and watched the television show “The First 48” “a lot.” They reasoned that “The First 48” was an
inappropriate way to view how police actually worked. I would not disagree with the trial court’s
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finding that the State’s asserted concern that “The First 48” might give Ms. Dowdy a negative
view of the police was a “race-neutral” reason for striking her.
¶ 51 As to prospective jurors Meiley and Clesen, the majority accepts (supra ¶¶ 36, 37) the
State’s contention that Mr. Dent was required to object both to the preemptory challenge itself and
then, again, as to the State’s proffered race-neutral reason for the challenge. According to the
majority, Mr. Dent’s failure to do so resulted a forfeiture of his right to argue on appeal that the
proffered race-neutral reason was pretextual.
¶ 52 The State cites no case that holds that this second objection is required. To the contrary,
Mr. Dent’s Batson challenge is a claim that the State intentionally used its preemptory challenges
in a racially discriminatory matter. 476 U.S. at 93. That claim is made at the point that a party
raises a Batson objection to a preemptory challenge and remains through all three steps of the
Batson procedure. As our supreme court has made clear, “[w]e require parties to preserve issues
or claims for appeal; we do not require them to limit their arguments [on appeal] to the same
arguments that were made below.” Brunton v. Kruger, 2015 IL 117663, ¶ 76. Mr. Dent made
claims below that these two preemptory challenges were racially discriminatory. Mr. Dent can
now make any argument he can muster in support of those claims. I would not find any forfeiture
of his arguments that the reasons the State gave for striking these two jurors were a pretext for
racial discrimination. However, I do agree with the majority that these arguments are, ultimately,
not persuasive.
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