2015 IL App (2d) 120856
No. 2-12-0856
Opinion filed March 9, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 09-CF-3944
)
KENNETH LEE PAYNE, JR., ) Honorable
) Gary V. Pumilia,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Winnebago County, defendant, Kenneth Lee
Payne, Jr., was found guilty of aggravated vehicular hijacking (720 ILCS 5/18-4(a)(1) (West
2008)) and aggravated battery (720 ILCS 5/12-4(b)(10) (West 2008)). The trial court sentenced
defendant to a term of 20 years’ imprisonment for aggravated vehicular hijacking and a
concurrent 5-year term of imprisonment for aggravated battery. On appeal, defendant raises two
distinct issues. First, defendant argues that defense counsel was ineffective for failing to move
for the charges against him to be dismissed under the speedy-trial provisions of the Interstate
Agreement on Detainers (730 ILCS 5/3-8-9 (West 2008)). Second, defendant argues that he is
entitled to a new trial because, in violation of Batson v. Kentucky, 476 U.S. 79 (1986), the State
2015 IL App (2d) 120856
used a peremptory challenge to strike a prospective juror on the basis of race. For the reasons
that follow, we affirm.
¶2 I. BACKGROUND
¶3 On December 17, 2009, defendant was charged with one count of aggravated vehicular
hijacking (720 ILCS 5/18-4(a)(1) (West 2008)), one count of aggravated battery of a senior
citizen (720 ILCS 5/12-4.6(a) (West 2008)), and one count of aggravated battery (720 ILCS
5/12-4(b)(10) (West 2008)). The charges stemmed from an incident that occurred at a
McDonald’s restaurant in Rockford on the evening of October 19, 2009.
¶4 When the indictment was filed, defendant was serving a sentence in the Wisconsin
Department of Corrections, based on a parole violation and a charge of possession of a controlled
substance in that state. On January 27, 2010, officials from the Wisconsin Department of
Corrections authored a letter to the Winnebago County State’s Attorney’s office. The letter
stated that the Wisconsin Department of Corrections had received a “Warrant” in defendant’s
case and was treating it as a detainer. Attached to the letter were: (1) a written request from
defendant dated January 26, 2010, for a final disposition of the untried charges in Illinois; (2) a
notice that defendant was imprisoned in the Dodge Correctional Institution in Waupun,
Wisconsin; (3) a certificate of his offender status; and (4) an offer to deliver temporary custody
of defendant. The letter was sent to the Winnebago County State’s Attorney’s office by certified
mail and received by that office on February 1. 1 The letter also indicated that it was “carbon
copied” to the “Winnebago County Clerk of Circuit Court.”
1
The copy of the letter received by the Winnebago County State’s Attorney’s office is
stamped as being received on “February 1, 2009.” We presume, and the parties do not dispute,
that the actual date of receipt was February 1, 2010, or five days after the date of the letter.
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¶5 Defendant’s first appearance in Winnebago County was on May 12, 2010. At that time,
William Weatherly, an assistant public defender, was appointed to represent defendant.
Continuances were agreed to by defense counsel from the date of defendant’s first appearance
through October 27, 2010. On October 27, 2010, defense counsel announced that defendant
wished to set his case for trial. The State requested December 6 as the trial date, but defense
counsel stated that he was not available on that date. The court then set a trial date of January 3,
2011. The parties agreed that the time between October 27 and December 6, 2010, would be
attributed to the State and that the time from December 6, 2010, through January 3, 2011, would
be attributed to defendant. On January 3, 2011, defendant filed a motion to suppress
identification evidence and a motion to suppress statements. Between January 3, 2011, and April
27, 2011, defense counsel sought and obtained continuances of the trial date. On April 27, 2011,
defendant informed the court that he wished to proceed pro se. After admonishing defendant,
the court granted defendant’s request. The case was then continued on defendant’s motion to
May 11, 2011.
¶6 On May 11, 2011, defendant initially indicated that he wanted to “[c]ontinue with [his]
120”(speedy-trial period) and set the case for trial. Defendant stated that he intended to waive a
hearing on the motion to suppress identification evidence but that he still wished to pursue the
motion to suppress statements. Accordingly, the trial court continued the case to June 14, 2011,
on defendant’s motion and tolled the time “until after that motion [to suppress statements] is
heard.” On June 14, the case was continued again to June 28, 2011, due to the trial court’s
unavailability to hear the motion to suppress statements.
¶7 On June 28, 2011, defendant informed the court that he wanted to withdraw the motion to
suppress statements and “just continue with [his] 120.” Upon the State’s request, the court set a
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trial date of July 18, 2011. On July 14, 2011, the State sought a continuance of the trial date to
August 15, 2011, due to its failure to serve subpoenas on two out-of-state witnesses and its recent
request for DNA testing on some materials that had not yet been examined. The State
acknowledged that, if the court granted a continuance, “all the time would be on [the State].”
Over defendant’s objection, the continuance to August 15 was granted, with a pretrial date of
August 11. Also on July 14, the court granted defendant’s request for an investigator to speak to
a potential witness.
¶8 On August 11, 2011, the State answered ready for trial. The State indicated that it made
“a strategic decision” to continue without the DNA information, explaining, “We don’t think it
will be depositive [sic] one way or the other and don’t want to delay the case anymore, and all of
our witnesses have been served.” However, defendant expressed frustration over his inability to
obtain the services of the investigator the court had referred to him. Defendant stated that he
wanted counsel reappointed, but he requested someone other than the public defender, remarking
that he had fired Weatherly because “he wasn’t doing anything I’m sayin’.” The court
reappointed the public defender’s office, and Assistant Public Defender Edward Light was
assigned to the case. 2 Upon defendant’s motion, the case was taken off the trial call and
continued until September 14, 2011, for status. The State then indicated that, “as long as [it has]
time,” it was going to “go ahead and have the DNA.”
¶9 Thereafter, the case was continued several times on defendant’s motion. On January 13,
2012, defense counsel indicated that he needed some time to speak with defendant regarding the
results of a Rule 402 conference (see Ill. S. Ct. R. 402 (eff. July 1, 1997)) but said that he was
also requesting that a trial date be set. By agreement of the parties, a trial date of March 26,
2
Light was later assisted at defendant’s trial by Weatherly.
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2012, was set, with a final pretrial date of March 22.
¶ 10 On March 22, 2012, the State announced that it was ready for trial. However, the State
then indicated that it was not certain whether materials relating to the DNA analysis that were
discoverable pursuant to Illinois Supreme Court Rule 417 (eff. Mar. 1, 2001) had been turned
over. The parties also discussed whether the current trial date was “within the 120” and whether
a continuance would put the case outside the speedy-trial period. Defendant expressed his belief
that the case was “beyond 120 days.” The court left the trial date of March 26, 2012, unchanged.
¶ 11 On March 26, 2012, both sides answered ready for trial. The State related, however, that
since the date of the pretrial the prior week, it had learned that the Rule 417 materials had not
been turned over to the defense. In addition, the State had learned that its fingerprint expert had
located additional prints that the expert wanted to examine, but that this would delay the expert’s
report. Defense counsel stated that, because the Rule 417 materials were discoverable and
should have been provided to the defense, the court should exclude any DNA evidence as well as
the proposed new fingerprint evidence. The trial court found that it would be unfair for the State
to continue to test materials and turn over the information during the course of the trial. The
State said that it would then make an oral motion for a one-day continuance to give defense
counsel time to absorb the Rule 417 materials.
¶ 12 The parties then discussed what dates were attributable to the State for speedy-trial
purposes. The State represented that it was “still well within [its] 120.” Defense counsel
responded that there were two time periods at issue, the 120-day speedy-trial term (see 725 ILCS
5/103-5 (West 2008)) and the 180-day term under the Interstate Agreement on Detainers (see
730 ILCS 5/3-8-9 (West 2008)). Defense counsel noted that in January 2010 defendant, while
incarcerated in Wisconsin, had caused a request for the disposition of his case to be sent to
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2015 IL App (2d) 120856
Winnebago County and had been brought to Winnebago County on May 11, 2010. Defense
counsel agreed that the State was within the 120-day speedy-trial term. The court stated that it
was inclined to grant a one-week continuance but would attribute that time to the State due to the
late disclosure. The case was then continued to April 2, 2012, for trial.
¶ 13 Jury selection commenced on April 2, 2012, with the trial court announcing that the
parties would select jurors by questioning panels of six. After the State questioned the first panel
of six, consisting of two women and four men, it excused venirepersons Deidre Tillman, an
African-American female, and Jennifer Juliano, a white female. Defense counsel objected to the
exclusion of the women as based on race and gender grounds, citing Batson. The State
responded that both Tillman and Juliano “have criminal convictions.” After excusing the venire
from the courtroom, the parties presented further argument. At the close of this argument, the
trial judge overruled the Batson objection to the State’s peremptory strikes, finding that the
State’s reason for excusing Tillman and Juliano was “race neutral and gender neutral.” Six
jurors were selected on April 2, with the remaining six and the alternates selected on April 3.
After both the jury and the alternates were selected, defense counsel renewed his Batson
objection. Following additional argument by the parties, the trial court again overruled the
Batson objection.
¶ 14 The matter then proceeded to trial. At the close of the trial, the jury returned verdicts
finding defendant guilty of aggravated vehicular hijacking and aggravated battery. On April 20,
2012, defendant filed a motion for a new trial. On May 22, 2012, defendant filed a supplemental
motion raising a Batson claim. A hearing was held on the motions on July 6, 2012. With respect
to the Batson claim, defense counsel noted that he had objected to the State’s use of peremptory
challenges with respect to Tillman and Juliano and that defendant, an African-American, had
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2015 IL App (2d) 120856
ended up with a jury of 12 white persons. Defense counsel argued that the State did not provide
a race- or gender-neutral reason for excusing either of these members of the venire where their
backgrounds and answers to questions did not distinguish them from jurors who were selected.
The State responded that its notes were “sketchy” as to the reasons why it struck the two
potential jurors in question, but, it said, with respect to Tillman, there was no pattern of racial
discrimination where Tillman was the first potential juror struck. The State added that the
majority of the jurors selected were female, so gender bias had not been shown. The court
denied both motions.
¶ 15 At a hearing held on July 27, 2012, the parties agreed that defendant should be given
credit against his Illinois sentence for the period from January 26, 2010, the date the detainer was
entered, to July 26, 2012, a total of 911 days. After hearing argument from both sides, the court
sentenced defendant to a term of 20 years’ imprisonment for aggravated vehicular hijacking and
a concurrent 5-year term for aggravated battery. Following the denial of his motion to reconsider
the sentence, defendant filed a timely notice of appeal.
¶ 16 II. ANALYSIS
¶ 17 A. Interstate Agreement on Detainers
¶ 18 On appeal, defendant first argues that defense counsel was ineffective for failing to move
for the charges to be dismissed pursuant to the 180-day speedy-trial provision of article III of the
Interstate Agreement on Detainers (Agreement) (730 ILCS 5/3-8-9, art. III (West 2008)).
According to defendant, such a motion would have been meritorious because, excluding delays
attributable to or agreed to by the defense, more than 180 days elapsed from the Winnebago
County State’s Attorney’s office’s receipt of his request for final disposition of his pending
Illinois charges to the commencement of his trial. As such, defendant asks that counsel be found
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to have provided ineffective assistance and that the charges against him be dismissed with
prejudice.
¶ 19 To determine whether a defendant was denied the effective assistance of counsel, we
apply the two-pronged test developed in Strickland v. Washington, 466 U.S. 668 (1984), and
adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under that
test, a defendant must establish both that (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defendant such that he was deprived of a fair trial.
Strickland, 466 U.S. at 687; People v. Wigman, 2012 IL App (2d) 100736, ¶ 31. Because a
defendant must satisfy both prongs of the Strickland test, the failure to prove either prong
precludes a finding of ineffective assistance. People v. Theis, 2011 IL App (2d) 091080, ¶ 39.
As a general rule, whether defense counsel provided ineffective assistance is subject to a
bifurcated standard of review, in which a reviewing court defers to the trial court’s findings of
fact unless they are against the manifest weight of the evidence but assesses de novo the ultimate
legal issue of whether counsel’s omission establishes an ineffective-assistance claim. People v.
Bailey, 375 Ill. App. 3d 1055, 1059 (2007). In this case, however, the facts relevant to our
analysis of defendant’s claim are undisputed, so our review is de novo. People v. Nowicki, 385
Ill. App. 3d 53, 81 (2008).
¶ 20 In demonstrating that counsel’s performance was deficient under the first prong of the
Strickland test, a defendant must overcome the strong presumption that counsel’s conduct under
the circumstances constituted sound trial strategy. People v. Houston, 226 Ill. 2d 135, 144
(2007). Furthermore, with regard to the second prong of the Strickland test, a defendant was
deprived of a fair trial when there is a reasonable probability that but for counsel’s deficient
performance the result of the proceeding would have been different. Houston, 226 Ill. 2d at 144.
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Thus, failing to move for a dismissal on the basis of a violation of the Agreement’s speedy-trial
provision will constitute ineffective assistance of counsel when there is at least a reasonable
probability that the defendant would have been discharged had a timely motion been filed and
there was no justification for defense counsel’s decision not to file a motion. See Wigman, 2012
IL App (2d) 100736, ¶ 31 (citing People v. Peco, 345 Ill. App. 3d 724, 729 (2004)); People v.
Hernandez, 345 Ill. App. 3d 163, 172 (2004); People v. Garcia, 251 Ill. App. 3d 473, 478-79
(1993). On the other hand, counsel’s failure to assert a violation of the Agreement’s speedy-trial
provision cannot establish either prong of an ineffective-assistance claim if there was no lawful
basis for raising a speedy-trial violation. See Wigman, 2012 IL App (2d) 100736, ¶ 31 (citing
People v. Phipps, 238 Ill. 2d 54, 65 (2010)). Accordingly, we must first determine whether
defendant’s right to a speedy trial under the Agreement was violated before we can determine
whether defense counsel was ineffective. See Wigman, 2012 IL App (2d) 100736, ¶ 31.
¶ 21 The Agreement is a uniform compact that has been adopted by the United States, the
District of Columbia, and 48 states. New York v. Hill, 528 U.S. 110, 111 (2000); Fex v.
Michigan, 507 U.S. 43, 44-45 (1993); People v. Adams, 2012 IL App (5th) 100088, ¶ 10. Both
Illinois and Wisconsin are parties to the Agreement. 730 ILCS 5/3-8-9 (West 2008); Wis. Stat.
Ann. § 976.05 (West 2008). As a congressionally sanctioned interstate compact, the Agreement
is subject to federal construction. Carchman v. Nash, 473 U.S. 716, 719 (1985); Adams, 2012 IL
App (5th) 100088, ¶ 10.
¶ 22 The Agreement sets forth the procedure for bringing a defendant imprisoned in one state
(the holding state) to trial on charges pending in another state (the receiving state). 730 ILCS
5/3-8-9 (West 2008); People v. Daily, 46 Ill. App. 3d 195, 199-200 (1977). The purpose of the
Agreement is to promote the expeditious and orderly disposition of detainers based on untried
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charges against a prisoner and to facilitate treatment and rehabilitation in the state where the
prisoner is incarcerated. Adams, 2012 IL App (5th) 100088, ¶ 10; Daily, 46 Ill. App. 3d at 198.
The Agreement is to be liberally construed so as to effectuate its purposes. 730 ILCS 5/3-8-9,
art. IX (West 2008).
¶ 23 The method for bringing a defendant to trial depends upon which article of the
Agreement applies. Article III of the Agreement permits a prisoner to request final disposition of
an untried indictment, information, or complaint. 730 ILCS 5/3-8-9, art. III (West 2008); Daily,
46 Ill. App. 3d at 199-200. Article IV of the Agreement allows the receiving state to request that
a prisoner against whom charges are pending be made available for prosecution. 730 ILCS 5/3-
8-9, art. IV (West 2008); Daily, 46 Ill. App. 3d at 199-200. In this case, defendant initiated the
request for final disposition, so our focus is on article III of the Agreement.
¶ 24 Article III(a) of the Agreement provides in pertinent part:
“(a) Whenever a person has entered upon a term of imprisonment in a penal or
correctional institution of a party state, and whenever during the continuance of the term
of imprisonment there is pending in any other party state any untried indictment,
information or complaint on the basis of which a detainer has been lodged against the
prisoner, he shall be brought to trial within 180 days after he shall have caused to be
delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s
jurisdiction written notice of the place of his imprisonment and his request for a final
disposition to be made of the indictment, information or complaint: provided that for a
good cause shown in open court, the prisoner or his counsel being present, the court
having jurisdiction of the matter may grant any necessary or reasonable continuance. The
request of the prisoner shall be accompanied by a certificate of the appropriate official
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having custody of the prisoner, stating the term of commitment under which the prisoner
is being held, the time already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility of the prisoner, and any
decisions of the state parole agency relating to the prisoner.” 730 ILCS 5/3-8-9, art. III(a)
(West 2008).
Section (c) of article III states that the prison officials who have custody of the prisoner “shall
promptly inform him of the source and contents of any detainer lodged against him and shall also
inform him of his right to make a request for final disposition” of the charges on which the
detainer is based. 730 ILCS 5/3-8-9, art. III(c) (West 2008). Section (b) of article III states that
the written notice and request for final disposition of the charges on which the detainer is based
shall be given or sent by the prisoner to the warden, commissioner of corrections, or other prison
official who has custody of him. 730 ILCS 5/3-8-9, art. III(b) (West 2008). In turn, the prison
officials “shall promptly forward [the request] together with the certificate to the appropriate
prosecuting official and court by registered or certified mail, return receipt requested.” 730 ILCS
5/3-8-9, art. III(b) (West 2008).
¶ 25 Thus, compliance with article III of the Agreement requires the following steps. Initially,
the receiving state must lodge a detainer with the holding state. 730 ILCS 5/3-8-9, art. III(a)
(West 2008); People v. Hood, 223 Ill. App. 3d 157, 159 (1991) (noting that the provisions of
article III do not apply unless the receiving state lodges a detainer against a prisoner in the
holding state). Prison officials in the holding state must then notify the prisoner of the detainer
and of the prisoner’s rights to request a final disposition of the charges upon which the detainer
is based. 730 ILCS 5/3-8-9, art. III(a), (c) (West 2008). The prisoner must then deliver to the
prison official having custody of him a written notice of the place of imprisonment and a request
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for a final disposition of any pending charges. 730 ILCS 5/3-8-9, art. III(a), (b) (West 2008);
Daily, 46 Ill. App. 3d at 201. Finally, the prison official is required to promptly forward the
prisoner’s request and a certificate describing the details of the prisoner’s incarceration to the
appropriate prosecuting official and the court by registered or certified mail, return receipt
requested. 730 ILCS 5/3-8-9, art. III(b) (West 2008); Daily, 46 Ill. App. 3d at 201. The prisoner
must be brought to trial within 180 days after “he shall have caused to be delivered to the
prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction” the written
notice and the request for a final disposition. 730 ILCS 5/3-8-9, art. III(a) (West 2008). Absent
any “necessary or reasonable continuance[s]” for “good cause,” the receiving state’s failure to
bring the prisoner to trial within the specified time frame will result in the dismissal with
prejudice of the charges against him. 730 ILCS 5/3-8-9, art. III(a), V(c) (West 2008); Hill, 528
U.S. at 112; Adams, 2012 IL App (5th) 100088, ¶ 14.
¶ 26 As noted above, defendant argues that counsel’s failure to move for the charges’
dismissal under the speedy-trial provision of article III of the Agreement constituted ineffective
assistance of counsel. Defendant contends that there is a reasonable probability that the charges
would have been dismissed, because more than 180 days elapsed from when the Winnebago
County State’s Attorney’s office received his request for final disposition to the start of his trial.
According to defendant, excluding delays attributable to or agreed to by the defense, a total of
191 days elapsed from the time he caused to be delivered to the State his request for final
disposition and the commencement of his trial. Defendant calculates the 191 days as follows: (1)
100 days from February 1, 2010 (when the State received his request for final disposition),
through May 12, 2010 (when he first appeared in court in Winnebago County); (2) 40 days from
October 27, 2010 (when he first requested a trial date to be set), through December 6, 2010 (the
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trial date requested by the State); (3) 44 days from June 28, 2011 (when defendant, then
proceeding pro se, withdrew his motion to suppress statements and demanded trial), through
August 11, 2011 (when defendant requested the reappointment of counsel); and (4) 7 days from
March 26, 2012, through April 2, 2012, due to the State’s request for a continuance based on its
failure to fully comply with discovery and its request to examine additional fingerprints.
Defendant further asserts that no justification was provided for counsel’s failure to seek the
charges’ dismissal under the Agreement.
¶ 27 The State responds that defense counsel was not ineffective for failing to move for
dismissal under the 180-day speedy-trial term set forth in article III of the Agreement. The
State’s argument is twofold. First, the State contends that, in calculating the 180-day speedy-
trial term, defendant incorrectly includes the 100-day period commencing on February 1, 2010.
According to the State, this 100-day period should not be counted, because (1) the record is silent
as to what caused the delay in defendant’s transfer from Wisconsin to Illinois and (2) the record
does not clearly show that the Winnebago County circuit court received defendant’s request for
final disposition. Alternatively, the State argues that some of the delay during the period tolled
the 180-day term because it occurred as a result of a continuance allowed by the trial court for
“good cause shown.” See 730 ILCS 5/3-8-9 (West 2008).
¶ 28 We are compelled to agree with the State and hold that defendant has failed to establish
that there is a reasonable probability that the charges would have been dismissed pursuant to the
Agreement had his attorney moved for dismissal prior to trial. In particular, because the record
does not establish the date when defendant’s request for final disposition was actually delivered
to the Winnebago County circuit court, it is impossible to determine if defendant was brought to
trial after the expiration of the 180-day period set forth in article III(a) of the Agreement.
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¶ 29 The record establishes that on January 26, 2010, defendant executed his request for final
disposition of the Winnebago County charges. The following day, the Wisconsin Department of
Corrections authored a letter directed to the Winnebago County State’s Attorney. The letter
included a copy of defendant’s request for final disposition as well as a written notice of
defendant’s place of imprisonment, a certificate of his offender status, and an offer to deliver
temporary custody of defendant. The letter also indicated that it was “carbon copied” to the
“Winnebago County Clerk of Circuit Court.” The Winnebago County State’s Attorney’s office
received the correspondence by certified mail on February 1, 2010. However, the record does
not reflect that the letter and its attachments were actually delivered to the clerk of the
Winnebago County circuit court.
¶ 30 In Fex, 507 U.S. 43, the United States Supreme Court addressed whether the 180-day
period set forth in article III(a) of the Agreement commences when the prisoner transmits his
request for final disposition to prison officials or when the request is delivered to the prosecuting
officer and the appropriate court. Fex, 507 U.S. at 47. Ultimately, the Court held that the 180-
day period does not commence “until the prisoner’s request for final disposition of the charges
against him has actually been delivered to the court and prosecuting officer of the jurisdiction
that lodged the detainer against him.” (Emphasis added.) Fex, 507 U.S. at 52. In so holding, the
Court recognized the possibility that, through negligence or malice, a prison official could
postpone commencement of the 180-day period by failing to properly forward a defendant’s
request. Fex, 507 U.S. at 49-50. Nevertheless, the Court determined that a significantly worse
scenario would result if the speedy-trial term commenced on the date the prisoner’s request is
transmitted to prison officials, because if, through an official’s negligence, the prisoner’s request
is delivered to the court and the prosecuting officer long after the 180-day period has expired, the
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prisoner’s untried charges would be dismissed before the prosecuting authorities were even
aware that the prisoner had requested final disposition. Fex, 507 U.S. at 50. The defendant in
Fex argued that fairness requires the burden of compliance with the Agreement’s requirements to
be placed entirely on the law enforcement officials involved since the prisoner has little ability to
enforce compliance. Fex, 507 U.S. at 52. The Court rejected this argument, stating that it is
more appropriately addressed to the legislatures of the states that have adopted the Agreement.
Fex, 507 U.S. at 52.
¶ 31 After the Supreme Court decided Fex, federal courts interpreted the decision as providing
that the speedy-trial period under article III(a) of the Agreement does not commence until both
the court and the prosecuting officer actually receive the request for final disposition. Thus, for
instance, in United States v. Collins, 90 F.3d 1420, 1425-26 (9th Cir. 1996), the defendant’s
demand for final disposition was received by the United States Marshal on May 6, 1994. The
Marshal filed a copy of the demand with the district court on May 10, 1994. The defendant
argued that the speedy-trial period under the Agreement began to run on May 6, reasoning that
delivery to the Marshal also constituted delivery to the district court. The Collins court rejected
this argument, explaining that “Fex instructs us that the [Agreement] means what it says. And
when it says that the prisoner must have his demand ‘delivered to the . . . appropriate court,’ that
is what it means.” Collins, 90 F.3d at 1426. The court concluded that delivery to the Marshal
did not constitute delivery to the district court, because the Marshal is not an agent of the court.
Collins, 90 F.3d at 1426. Since actual delivery to the district court did not occur until May 10,
that is when the speedy-trial period began to run. Collins, 90 F.3d at 1426; see also United
States v. Paredes-Batista, 140 F.3d 367, 374-75 (2d Cir. 1998) (holding that where the
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defendant’s request for final disposition was delivered to the district court and the prosecuting
officer on different dates, the later date would commence the 180-day speedy-trial term).
¶ 32 More recently, in United States v. Brewington, 512 F.3d 995 (7th Cir. 2008), the court
held that a prisoner’s demand for a speedy trial pursuant to article III(a) of the Agreement did not
trigger the 180-day period where, although his demand was received by the United States
Attorney’s office, it was never delivered to the district court. The Brewington court
acknowledged that the Agreement is to be liberally construed. Brewington, 512 F.3d at 997.
Even so, the court stated that this command cannot overcome the Supreme Court’s literal
interpretation that the demand for final disposition is to be delivered to the prosecuting officer
and the appropriate court. Brewington, 512 F.3d at 997. Moreover, relying on Fex, the
Brewington court explained that although “[p]rison authorities are charged with sending the
demand to the prosecutor and the court *** the prisoner bears responsibility for ensuring that his
jailors follow through.” Brewington, 512 F.3d at 997 (citing Fex, 507 U.S. at 49).
¶ 33 In United States v. Washington, 596 F.3d 777 (10th Cir. 2010), cert. denied, 561 U.S.
1036 (2010), the Bureau of Alcohol, Tobacco, and Firearms (ATF) lodged a detainer against the
defendant, who was then incarcerated in Kansas. The defendant, acting pro se, drafted a
document titled “ ‘Final Disposition of Detainer.’ ” Washington, 596 F.3d at 779. The
defendant then sent two copies of the document to the same mailing address, but directed one
copy to the “ ‘Department of Justice, Issuing prosecutor’ ” and the second copy to the
“ ‘Department of Justice, Court.’ ” Washington, 596 F.3d at 779. The United States Attorney’s
office, which was located at the mailing address used by the defendant, received both documents.
It did not forward a copy to the district court, which was located at a different address.
Subsequently, the defendant submitted a request for final disposition through the Kansas
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Department of Corrections (KDOC). KDOC sent the request by certified mail to the ATF.
Neither KDOC nor the ATF forwarded a copy of the request to the district court. The defendant
moved to dismiss the charges against him, on the basis that more than 180 days had passed since
he caused to be delivered to the prosecuting officer his requests for final disposition. The district
court denied the defendant’s motion, and the defendant was ultimately convicted of the charges.
¶ 34 On appeal, the defendant renewed his argument that the Agreement had been violated.
However, the Washington court held that, because actual delivery to both the prosecuting officer
and the court was not accomplished, there had been no violation of the Agreement. Washington,
596 F.3d at 780-81. The court rejected the defendant’s argument that he was entitled to relief
because the United States Attorney’s office should have forwarded to the district court the
request addressed to the “ ‘Department of Justice, Court.’ ” Washington, 596 F.3d at 780-81.
The court relied on Fex, noting that that decision expressly requires actual delivery to both the
prosecutor and the court. Washington, 596 F.3d at 781. The court further noted that the Fex
Court refused to carve out a “fairness” exception to the express language of the Agreement in
cases in which a third party had negligently or maliciously prevented delivery from occurring.
Washington, 596 F.3d at 781 (citing Fex, 507 U.S. at 50-52).
¶ 35 Various state courts have also held that the 180-day period set forth in article III(a) of the
Agreement does not begin to run until the prisoner’s request for final disposition is received by
both the prosecuting officer and the appropriate court in the receiving state. See, e.g., State v.
Dodson, 2009 MT 419, ¶ 41, 354 Mont. 28, 221 P.3d 687 (holding that the speedy-trial
provisions of the Agreement are not triggered until the prosecutor and the court receive the
prisoner’s request for a final disposition); Peterson v. State, 73 P.3d 108, 110-12 (Idaho Ct. App.
2003) (holding that 180-day period did not begin to run where prison officials forwarded the
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defendant’s request for a final disposition to the court clerk but not to the county prosecutor);
State v. Somerlot, 544 S.E.2d 52, 59-60 (W. Va. 2000) (holding that 180-day period did not
begin to run where prison officials forwarded the defendant’s request for final disposition to the
prosecutor but not to the court clerk); Crosland v. State, 857 P.2d 943, 945-46 (Utah 1993)
(holding that 180-day period did not begin to run where the defendant’s request for a final
disposition was never delivered to the appropriate court and prosecuting official).
¶ 36 Here, the record suggests that Wisconsin prison officials mailed a copy of defendant’s
paperwork to the Winnebago County circuit clerk. However, the record is devoid of any
indication that the mailing was actually delivered to the clerk. Given these circumstances, and in
light of the clear authority cited above, we cannot determine when the 180-day speedy-trial
period began to run. Consequently, we cannot conclude that the 180-day speedy-trial provision
of article III(a) of the Agreement was violated.
¶ 37 Defendant nevertheless argues that there is a legal presumption that a letter that is
properly addressed, stamped, and mailed was received by the addressee. See City of Chicago v.
Supreme Savings & Loan Ass’n, 27 Ill. App. 3d 589, 592 (1975). Defendant’s position misses
the mark. To say that a letter is presumed to be delivered does not answer the question of when
the letter was delivered. It is the date of delivery, not just the fact of delivery, that is the critical
inquiry in calculating the speedy-trial period under article III(a) of the Agreement. See, e.g.,
Paredes-Batista, 140 F.3d at 374-75; Collins, 90 F.3d at 1426. Without knowing precisely when
defendant’s request was delivered to the circuit court, it is impossible to determine whether a
violation of the Agreement occurred. See Morganfield v. State, 919 S.W.2d 731, 734 (Tex.
App. 1996) (noting that, in the absence of proof of when both the trial court and the prosecuting
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attorney received the defendant’s request for final disposition under the Agreement, the court
was unable to determine when the 180-day speedy-trial term began to run).
¶ 38 Although not cited by defendant, we note that our supreme court rules provide that,
“[w]hen service of a paper is required,” “[s]ervice by mail is complete four days after mailing.”
Ill. S. Ct. R. 12(a), (c) (eff. Dec. 29, 2009). Of course, the presumption that service by mail is
complete four days after mailing applies only if the record contains proper proof of mailing. See
Montalbano Builders, Inc. v. Rauschenberger, 341 Ill. App. 3d 1075, 1078-79 (2003) (presuming
that request to admit facts was received four days after the date that the notice of service was
filed). Illinois Supreme Court Rule 12(b)(3) (eff. Dec. 29, 2009) provides that, in case of service
by mail, service is proved by “certificate of the attorney, or affidavit of a person other than the
attorney, who deposited the paper in the mail ***, stating the time and place of mailing ***, the
complete address which appeared on the envelope ***, and the fact that proper postage *** was
prepaid.” Assuming, arguendo, that Rule 12 applies and that the letter from prison authorities
forwarding defendant’s request for final disposition under the Agreement constituted a “paper”
for purposes of Rule 12 (see Ill. S. Ct. R. 2 (b)(3) (eff. May 30, 2008) (defining “paper” as a
“pleading, motion, notice, affidavit, memorandum, brief, petition, or other paper or combination
of papers required or permitted to be filed”), we are unable to find in the record an affidavit by
either any of the prison authorities or defendant evincing compliance with the proof-of-service
requirements set forth in Rule 12(b)(3). As such, service was not proven and we cannot presume
that service of defendant’s request for final disposition was complete four days after mailing.
See People v. Tlatenchi, 391 Ill. App. 3d 705, 716 (2009) (holding that the defendant’s motion to
withdraw guilty plea was untimely where proof of service did not comply with Rule 12(b)(3)). 3
3
Rule 12 was recently amended to provide that, in case of service by mail by a pro se
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¶ 39 In short, we conclude that defendant has not established when the 180-day speedy-trial
term under article III(a) of the Agreement began to run. Therefore, defendant has failed to
demonstrate that a motion to dismiss based on a violation of the Agreement’s speedy-trial
provision would have merit. As such, we reject the notion that defendant’s right to a speedy trial
under the Agreement was violated. Since defendant has not established that there is a reasonable
probability that he would have been discharged had a timely motion been filed, we must reject
defendant’s claim that defense counsel was ineffective for failing to move for dismissal under the
Agreement.
¶ 40 B. Jury Selection
¶ 41 Next, defendant claims that he should receive a new trial because the State used a
peremptory challenge to exclude Tillman on the basis of her race. 4 The State disputes
defendant’s claim, asserting that it excused Tillman for race-neutral reasons.
petitioner from a correctional institution, service is proved “by affidavit, or by certification as
provided in section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)) of the
person who deposited the document in the institutional mail, stating the time and place of deposit
and the complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff.
Sept. 19, 2014). Of course, this provision was not in effect when defendant gave his request for
final disposition to prison authorities. Moreover, even if it had been in effect, and assuming that
defendant was the party responsible for establishing service by mail, the record does not contain
either an affidavit or a section 1-109 certification by defendant. As such, this provision would
afford defendant no relief.
4
At trial, defendant also objected to the exclusion of Juliano on gender grounds.
Defendant does not renew that argument on appeal.
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¶ 42 The equal-protection clause of the fourteenth amendment prohibits the State from using
its peremptory challenges to exclude otherwise qualified venire members based solely on their
race. U.S. Const., amend. XIV; Batson, 476 U.S. at 89. In Batson, the Supreme Court
developed a three-step process for evaluating a defendant’s claim that the State exercised a
peremptory challenge in a racially discriminatory manner. First, the defendant must make a
prima facie showing that the State exercised a peremptory challenge on the basis of race. 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; People v. Edwards, 144 Ill. 2d 108, 152-53 (1991); People v.
Mayes, 257 Ill. App. 3d 137, 143 (1993). Among the circumstances deemed “relevant” in
establishing a prima facie case are: (1) racial identity between the objecting party and the
excluded venireperson; (2) a pattern of strikes against minority venirepersons; (3) the
disproportionate use of peremptory challenges against minority venirepersons; (4) evidence of
the minority representation in the venire as a whole compared to the selected jury; (5) the
nonobjecting party’s questions and statements during voir dire and while exercising peremptory
challenges; (6) whether excluded venirepersons were a heterogenous group sharing race as their
only common characteristic; and (7) the race of the objecting party, the victim, and the witnesses
at trial. Mack v. Anderson, 371 Ill. App. 3d 36, 44-45 (2006) (citing People v. Williams, 173 Ill.
2d 48, 71 (1996)).
¶ 43 Once a defendant establishes a prima facie case of purposeful discrimination, the process
moves to the second step, where the burden shifts to the State to articulate a race-neutral
explanation for excluding each venireperson in question. Batson, 476 U.S. at 97; Easley, 192 Ill.
2d at 323-24. “A race-neutral explanation is one based upon something other than the race of the
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venireperson.” Easley, 192 Ill. 2d at 324. During the second step, the trial court focuses on the
facial validity of the State’s explanation, and the explanation need not be persuasive or even
plausible. Easley, 192 Ill. 2d at 324. The defendant may then rebut the State’s reasons as being
pretextual. Easley, 192 Ill. 2d at 324. At the third step, the trial court must determine whether
the moving party has met its burden of establishing purposeful discrimination. Batson, 476 U.S.
at 98; Easley, 192 Ill. 2d at 324. During this final step, the trial court evaluates the reasons
provided by the nonmoving party as well as the claims by the moving party that the proffered
reasons are pretextual. Easley, 192 Ill. 2d at 324; Mack, 371 Ill. App. 3d at 44. Because the trial
court’s ultimate ruling on a Batson claim is entitled to great deference, it will not be reversed on
review unless clearly erroneous. People v. Davis, 231 Ill. 2d 349, 364 (2008); People v. Hogan,
389 Ill. App. 3d 91, 100 (2009). A determination is clearly erroneous only when a review of the
entire record leaves the reviewing court with the definite and firm conviction that a mistake has
been made. Hernandez v. New York, 500 U.S. 352, 369 (1991).
¶ 44 Tillman, an African-American female, and Juliano, a white female, were part of the first
group of six venirepersons questioned during voir dire. Initially, the court questioned the group.
The court noted that Tillman “was in some trouble before” and asked her whether “that [is] all
over and done with.” Tillman answered in the affirmative. The court then inquired, “Is there
anything about that that would put either side here at an advantage or a disadvantage in this
case?” Tillman responded “no” and further agreed that she could “put that out of [her] mind
during the pendency of this case.” Similarly, the court noted that Juliano was “in some trouble a
long time ago.” Like Tillman, Juliano indicated that she could put that experience out of her
mind during the pendency of the case and that there was nothing about that experience that
would advantage or disadvantage either side. During the State’s questioning of Tillman and
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Juliano, it briefly noted that Tillman had “some issues” with the law and that Juliano “had a
problem about a dozen years ago.” After questioning the remainder of the group of six
venirepersons, the State used peremptory challenges to excuse Tillman and Juliano. Defendant
raised a Batson objection. The State responded by noting that both Tillman and Juliano had
criminal convictions.
¶ 45 During further argument, defendant stated that he was objecting to the exclusion of
Tillman as based on racial grounds and to the exclusion of both Tillman and Juliano as based on
gender grounds. Defense counsel noted that the venire consisted of 40 individuals, only 4 of
whom were African-American. Defense counsel further noted that the court had already excused
one of the four African-Americans for medical reasons. In response, the State reiterated that it
exercised its peremptory challenges with respect to Tillman and Juliano because both women
disclosed that they had criminal convictions. The State explained that it made a “tactical
decision” that it did not want an individual with a criminal conviction “if [it] had the
preemptories [sic] available to [it].” The prosecutor further remarked:
“Every jury trial that is tried by people in my office, we run criminal histories on
every person we believe may be called to a venire for the express purpose of knowing
people’s criminal background so that we can make a decision based on the situation of
where we are with preemptories [sic], who’s left in the venire panel whether we’re going
to strike people. And it is always my practice to try and eliminate people with criminal
records.”
At the close of argument, the trial court overruled the Batson objection, finding that the State’s
reason for exercising the peremptory challenges was both race- and gender-neutral.
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¶ 46 After a panel of 12 jurors and 2 alternates was selected, defense counsel renewed his
Batson objection. Defense counsel asserted that the State, notwithstanding its earlier claim that it
would excuse any juror with a prior conviction, had accepted two white jurors, Deanna Nyman
and Michael Gates, who had prior convictions. Therefore, defense counsel argued, the State’s
accepting Nyman and Gates “contradict[ed]” the reason the State had given for striking Tillman
and Juliano. The State responded that its use of peremptory challenges was “strategic based on
how many preempts [sic] [it] had left.” The State asserted that defendant could not show a
pattern of discriminatory strikes, because Tillman and Juliano were the first two venirepersons
struck by the State. The State also pointed out that it accepted one African-American juror. 5
The State further responded that it was “not thrilled” to keep Gates on the jury, but that it had
only one strike remaining. The State explained that it felt that it “could not afford to be left
without a strike because[,] except for the fact that he had a criminal history, in all other respects,
he appeared to be answering his questions appropriately.” The State asserted that the same was
true with respect to Nyman. The State explained that when it accepted Nyman it had only one
peremptory challenge left and it “didn’t feel that tactically [it] could allow [itself] to make a
strike and then potentially have someone worse end up on the jury.” The State noted that its
concern was evidenced by Jeffrey Lierman, the last venireperson called. The State commented
that it was “quite concerned” that Lierman would have ended up on the jury if it had exhausted
its challenges. The trial court again overruled defendant’s Batson objection, explaining that the
situation at the beginning of jury selection is different from the situation at the end of jury
selection. Accordingly, the court found that the State’s reason with respect to Nyman was race-
5
The African-American juror, Wanda Perry, was excused during the course of the trial
for reasons not relevant to this appeal. She was replaced by an alternate.
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neutral, and it determined, with respect to Gates, that it did not “much matter[],” because
defendant had exercised a peremptory challenge to excuse Gates.
¶ 47 As the foregoing discussion suggests, the State offered its explanation for striking
Tillman and Juliano immediately after defendant initially raised his Batson claim and before the
trial court had an opportunity to determine whether a prima facie showing had been made under
the first step of the Batson analysis. 6 However, the court did determine that the State had an
adequate race-neutral reason for exercising the peremptory challenges. Accordingly, we need
not address whether a prima facie case was made under Batson and we determine only whether
the trial court erred in finding that the State’s explanation for striking Tillman was race-neutral
and valid. See Easley, 192 Ill. 2d at 325; see also People v. Rivera, 221 Ill. 2d 481, 506 (2006)
(“[W]hether a prima facie case of discrimination exists at the outset becomes a moot point after
the trial court finds valid and race-neutral reasons supporting the peremptory challenge ***.”).
¶ 48 The State cited two principal reasons for excluding Tillman—Tillman’s criminal history
and the timing of the peremptory challenge. With respect to the first reason, the trial court
correctly determined that the existence of a criminal history is a race-neutral reason for excluding
a prospective juror. See People v. Smith, 258 Ill. App. 3d 1003, 1024 (1994) (noting that among
the jury traits that may justify a peremptory challenge is the prospective juror’s “arrest record”);
People v. Lovelady, 221 Ill. App. 3d 829, 838-39 (1991) (same); see also Easley, 192 Ill. 2d at
6
In fact, when defense counsel suggested that he had “made the necessary first stage
showing” that the State exercised a peremptory challenge on the basis of race, the trial court
responded that it was not required to determine whether defendant had made a “first-stage
showing,” because the State had already proffered a race-neutral explanation for excluding the
venirepersons in question.
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324 (“A race-neutral explanation is one based upon something other than the race of the
venireperson.”).
¶ 49 Defendant nevertheless asserts that the State’s explanation for striking Tillman was
pretextual because the State later accepted two white jurors (Nyman and Gates), who also had
criminal convictions. However, the State’s acceptance of Nyman and Gates does not, under
existing case law, establish that its explanation for striking Tillman was pretextual. See People
v. Hudson, 157 Ill. 2d 401, 431 (1993). Moreover, where a small number of peremptory
challenges remains, a character trait that might have resulted in the use of a peremptory
challenge at an earlier point in jury selection might no longer call for the excusal of a prospective
juror sharing that characteristic. See People v. Taylor, 409 Ill. App. 3d 881, 903 (2011) (“[T]he
State provided an additional reason for excusing some, but not all, social workers from the
venire, namely, that it had only seven peremptories and social workers were in ‘abundance,’ so it
could not excuse every social worker.”). In this case, the State consistently asserted that its use
of peremptory challenges to excuse venirepersons with criminal histories would depend on the
number of peremptory challenges available to it.
¶ 50 Significantly, when defendant first raised his Batson objection, the State asserted that it
made a “tactical decision” that it did not want an individual with a criminal conviction on the
jury “if [it] had the preemptories [sic] available to [it].” Subsequently, when defendant renewed
his Batson objection immediately prior to the commencement of trial, the State reiterated that its
use of peremptory challenges was “strategic based on how many preempts [sic] [it] had left.”
The State added that it “didn’t feel that tactically [it] could allow [itself] to make a strike and
then potentially have someone worse end up on the jury.” As noted earlier, the trial court
accepted the State’s explanation, recognizing that “the situation at the beginning of jury selection
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2015 IL App (2d) 120856
is different than the situation at the end of jury selection.” The court further noted that Gates was
excused by the defense and that the State’s reason with respect to Nyman was race-neutral.
Given the record before us, we are unable to conclude that the court’s finding is clearly
erroneous.
¶ 51 In this case, each party had 7 peremptory strikes to use with respect to the selection of the
12-person jury. See Ill. S. Ct. R. 434(d) (eff. May 1, 1985). The parties also had two
peremptory challenges with respect to the selection of the two alternates. See Ill. S. Ct. R. 434(e)
(eff. May 1, 1985) (“Each party shall have one additional peremptory challenge for each
alternate juror.”). With respect to the selection of the 12-person jury, the record establishes that,
after the State questioned the first venire panel of 6, it exercised peremptory challenges to
remove Tillman and Juliano based on their prior criminal convictions. Following the excusal of
Tillman and Juliano, the State had five peremptory challenges remaining. By the time Nyman
was called, the parties had selected 10 jurors and the State had exercised 3 additional peremptory
challenges. Thus, the State had used five peremptory challenges, with two remaining, and the
parties needed to seat two additional persons on the jury. Nyman was called in a panel with one
other individual, Debra Forsell. During questioning, Nyman acknowledged that she was “in
some trouble a while ago,” but that it was “all over and done with.” In addition, she stated that
there was nothing about her experience that would put either side at an advantage or
disadvantage. Forsell had a family member who had been in trouble with the law, and she
hesitated when asked if she could put that matter out of her mind and decide this case on its own
facts. Forsell agreed that she was having a difficult time putting her family member’s experience
out of her mind. She described the experience as “traumatic” and stated that she attended court
proceedings in the matter. Forsell stated that, while she thought that she could put the matter out
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2015 IL App (2d) 120856
of her mind, the court proceedings here were bringing the trauma back and she was unsure that
she could be impartial. With this backdrop, the State had four choices: (1) strike both Nyman
and Forsell, thereby leaving itself without any peremptory challenges; (2) strike Nyman because
of her criminal history; (3) strike Forsell because she indicated that she would have a difficult
time being impartial; or (4) strike neither Nyman nor Forsell. The State opted for the third
option and used its sixth peremptory challenge to strike Forsell. This left the State with one
peremptory challenge available, if needed, to select the last juror. Indeed, as the State explained
when defendant renewed his Batson objection prior to trial, it “didn’t feel that tactically [it] could
allow [itself] to make a strike [of Nyman] and then potentially have someone worse end up on
the jury.” Given this record, we are unable to conclude that the State’s use of the peremptory
challenges evinced a discriminatory purpose.
¶ 52 The State faced a similar choice with respect to the selection of Gates. By the time Gates
was called, the parties had selected 11 individuals for the 12-member jury. Gates was called
with two other venirepersons, Nathan Nelsen and Lierman. Gates, Nelsen, and Lierman were
questioned with three other venirepersons (Frank Azaretto, Wilma Thomas, and Amanda
Browman). Azaretto was excused for cause, and Thomas became the twelfth member of the
jury. The remaining four venirepersons (Gates, Nelsen, Lierman, and Browman) were potential
alternates. During voir dire, the trial court noted that Gates was “in some trouble awhile ago”
and asked whether that was “all over and done with.” Gates responded in the affirmative. Gates
further indicated that he could put that experience out of his mind during the pendency of the
case and that there was nothing about that experience that would put either side at an advantage
or disadvantage. Like Gates, Lierman also indicated that he had been “in some trouble awhile
ago,” but that the matter was “all over and done with.” However, Lierman indicated that he did
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2015 IL App (2d) 120856
not know if he could “get over” the beyond-a-reasonable-doubt standard, describing it as a
“pretty high bar.” Lierman further commented that “it seems almost impossible” to meet that
standard. Despite these remarks, Lierman later indicated that he could fulfill his duty as a juror.
Lierman also hesitated when the State asked him if he would judge the testimony of an African-
American witness differently from that of any other witness, but he indicated that he would take
the testimony of any witness “as what it is.” The State used a peremptory challenge to excuse
Lierman, but accepted the rest of the remaining venirepersons (Browman, Gates, and Nelsen).
Thus, the State had reserved one peremptory challenge, if needed, for the selection of the last
alternate. Again, we find nothing in this choice evincing a discriminatory purpose in the State’s
use of its peremptory challenges.
¶ 53 Defendant also argues that Tillman was questioned more than the other persons on the
venire and that this demonstrates that the State was searching for a pretextual reason to dismiss
her. To the extent that Tillman was questioned more than the other venirepersons, we attribute it
to two factors. First, Tillman was the very first venireperson questioned. Second, the method of
questioning differed from one venireperson to the next. Some members of the venire, like
Tillman, were questioned individually. Others were questioned as a group and still others were
questioned both individually and as a group. More important, we find that the types of questions
posed to Tillman were also asked of other venirepersons throughout voir dire, including some by
defense counsel. For instance, Tillman was asked about her profession, how she handles
disagreements, what one can discern from a person’s appearance, and her television-viewing
habits. Similar questions were posed to other venirepersons. The State also asked Tillman what
she would do if she disagreed with the law, whether she could withhold judgment until she heard
all of the evidence in the case, and whether she would have any reservations about making a
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2015 IL App (2d) 120856
judgment in the case. Again, questions of this nature were asked of other venirepersons.
Furthermore, just as Tillman was also questioned about her last encounter with a police officer
and whether she was satisfied with her treatment, other potential jurors were asked about
previous police encounters and any treatment they received while dealing with the justice system
in general. These questions addressed the ability of the venirepersons to render a verdict based
on the law and the evidence, to speak their minds during deliberations if chosen, and to put aside
any preconceived notions that might have come from television. Accordingly, we are compelled
to reject defendant’s claim that the State’s questioning of Tillman demonstrated that it was
searching for a pretextual reason to dismiss her.
¶ 54 Defendant also suggests that the State’s proffered reason for striking Tillman was
pretextual in light of the fact that, by the time of the hearing on his posttrial motion, the
prosecutor could not recall her proffered reason for striking Tillman. Defendant’s argument
ignores the facts that Tillman was but one of seven venirepersons against whom the State
exercised peremptory challenges and that the hearing on the posttrial motion was more than three
months after jury selection occurred. Under these circumstances, we cannot conclude that the
prosecutor’s lack of recall regarding the specific reason for striking Tillman establishes that her
stated reason was pretextual.
¶ 55 In sum, in light of the foregoing, we are not left with a “definite and firm conviction” that
the trial court made a mistake in finding that the State’s reason for using a peremptory challenge
to excuse Tillman was race-neutral. Accordingly, we find that the trial court’s determination that
the State established a valid and race-neutral reason for excluding Tillman is not clearly
erroneous.
¶ 56 III. CONCLUSION
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2015 IL App (2d) 120856
¶ 57 For the reasons set forth above, the judgment of the circuit court of Winnebago County is
affirmed.
¶ 58 Affirmed.
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People v. Payne
Court: Appellate Court of Illinois
Date filed: 2015-03-09
Citations: 2015 IL App (2d) 120856, 40 N.E.3d 43
Copy CitationsCombined Opinion