People v. Thomas

559 N.E.2d 262, 201 Ill. App. 3d 255, 147 Ill. Dec. 262, 1990 Ill. App. LEXIS 1167
Appellate Court of Illinois·Decided August 8, 1990·No. 2-88-1200·Published·Cited by 5 cases

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Defendant, John R. Thomas, was convicted by a jury of the offense of robbery in violation of section 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1). Defendant now appeals, alleging that the prosecutor improperly exercised a peremptory challenge to keep a member of defendant’s racial group from serving on the petit jury. We affirm.

The complaint filed against defendant alleged that he forcibly took a red handbag from the victim, Dorothy Fowler. The purse contained $13.65. We note that the defendant is a black male, and the victim is female; however, the record does not establish the victim’s race.

Prior to voir dire examination, each prospective juror in defendant’s case completed a juror profile questionnaire. The questionnaire filled out by one prospective juror, Wanda T. Marshall, indicates that she was 25 years old, single, and the parent of one child. During voir dire, the trial court asked Marshall if she could serve as a fair and impartial juror in the defendant’s trial, and she responded affirmatively. Defense counsel then interviewed Marshall and posed the following question:

“Q. You yourself are black; my client is black. The victim is a woman. Is there anything about that set of circumstances that may prevent you from being fair and impartial in giving my client, Mr. Thomas, a fair trial?
A. No.”

Afterwards, the prosecutor began his interview of Marshall in the following manner:

“Q. It is Miss Marshall?
A. Yes.
Q. Miss Marshall, have you been married in the past?
A. No.
Q. I take it, you have one child?
A. Yes.
Q. How old is he?
A. Four.
Q. Is he your natural child?
A. Yes.”

Among the other questions the prosecutor asked Marshall was whether she would convict the defendant if the case against him were proved beyond a reasonable doubt. Marshall indicated that she would.

The prosecutor then exercised a peremptory challenge against Marshall, and defendant objected. Defense counsel stated to the court that the prosecutor was required to state his reasons for excluding Marshall because “she is the only black person, out of forty-some odd people that have already been traipsed up here as prospective jurors.” The prosecutor responded that, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, “the defendant must first make a prima facie showing” of the discriminatory use of a peremptory challenge. The prosecutor noted his agreement with defense counsel’s position that a prima facie showing of discrimination had been made because the only black on the venire had been excused.

The prosecutor then proffered this explanation for excusing Marshall:

“The court is aware from my questioning that Miss Marshall is the first and only unwed mother we have as a prospective juror. *** My attitude in picking jurors, Judge, is to pick persons who are conservative, fair, impartial people. It is my perception as a practitioner and as an individual that persons who are unwed mothers may lack the type of moral fiber or may have certain inherent prejudices due to their relaxed views on that type of act or lifestyle, so as to, in my opinion, warrant them unsuitable in a criminal case.”

The prosecutor also stated that he felt Marshall was hesitant in answering his questions, but he restated that his “first and foremost rationale” for excusing Marshall was “her status as an unwed mother.”

Defense counsel responded that the prosecutor’s explanation indicated that Marshall was also improperly challenged with regard to her sex and marital status. He contended that the prosecutor’s explanation was “a cop-out to get out of the racial issue.” He further noted that Marshall “did not hesitate on hardly any questions” and that “she was emphatic as to her ability to remain fair and impartial as a juror.” The trial court responded:

“THE COURT: Well, gentlemen, I have heard both sides of this now and I feel what you say, [defense counsel] Sowa, is correct. She has indicated her willingness to serve. However, I do feel that [Assistant State’s Attorney] Busch has responded pursuant to Badson, [sic] and, as weak as you may feel his response is, I think it is sufficient to avoid the fact that it is purely on a racial basis.”

The court then denied the motion and allowed Marshall to be excused.

The jury ultimately returned a verdict of guilty. Defendant moved for a new trial on the basis that, inter alia, the prosecutor improperly exercised a peremptory challenge against a juror of defendant’s race. The trial court denied the motion and sentenced defendant to four years’ imprisonment. Defendant now appeals.

Initially, we note that the record on appeal did not originally contain the juror profile questionnaires completed by the prospective jurors, and they may not have been part of the record in the trial court. Defendant, subsequent to the filing of both parties’ briefs, sought and was granted leave to supplement the record on appeal with the questionnaires. In a supplemental brief, the State contends that leave to supplement the record was improperly granted because of the lateness of the request and that this court should strike the orders granting such.

Supreme Court Rule 329 (107 Ill. 2d R. 329) permits the amendment of a record where there are material omissions or inaccuracies or if the record otherwise is insufficient to present fully and fairly the questions involved. (People v. Span (1987), 156 Ill. App. 3d 1046, 1053.) One of the objects of Rule 329 “is to allow the record on appeal to be amended to *** settle controversies as to whether the record on appeal accurately discloses what occurred at trial.” (People v. Petty (1987), 160 Ill. App. 3d 207, 211.) However, where an amendment would be unfair to a party, the courts have refused to permit the amendment. (Span, 156 Ill. App. 3d at 1053.) Here, given the factual nature of the peremptory challenge issue, we conclude that it was necessary to add the questionnaires to the record, albeit tardy, in order for the issue to be fully and fairly decided on appeal; we do not find that the State was prejudiced by this and, thus, affirm our original order.

We now turn our attention to the merits of the peremptory challenge issue. In Batson v. Kentucky, the Supreme Court recognized that “the peremptory challenge occupies an important position in our trial procedures.” (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 89, 106 S. Ct.

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People v. Thomas, 559 N.E.2d 262, 201 Ill. App. 3d 255, 147 Ill. Dec. 262, 1990 Ill. App. LEXIS 1167 (Ill. Ct. App. 1990).

559 N.E.2d 262 (People v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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