                                                                Second Division
                                                                September 29, 2006


No. 1-01-1966


THE PEOPLE OF THE STATE                                 )       Appeal from the
OF ILLINOIS,                                            )       Circuit Court of
                                                        )       Cook County
                                                        )
              Plaintiff-Appellee,                )
                                                        )
                                                        )
       v.                                               )     No. 99 CR 3720
                                                        )
                                                        )
JACKIE DAVIS,                                           )     Honorable
                                                        )     Edward M. Fiala, Jr.
                                                        )     Marjorie C. Laws,
              Defendant-Appellant.               )      Judges Presiding.


       JUSTICE HALL delivered the opinion of the court:

       This cause is before us after remand for a hearing pursuant to Batson v.

Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant Jackie

Davis appeals from the trial court's finding that the State provided legitimate, race-

neutral reasons for peremptorily striking African-American venireperson Derrick

Summers. The facts and procedural history of this case are fully set forth in our

previous opinion (People v. Davis, 345 Ill. App. 3d 901, 803 N.E.2d 514 (2004)) and will

only be repeated as necessary for resolution of this appeal.

       Following a jury trial, defendant was convicted of second-degree murder and

sentenced to 18 years' imprisonment. After defendant's motion to reconsider sentence

was denied he filed a timely notice of appeal on April 10, 2001.

       On direct appeal, defendant contended, among other things, that he was denied
1-01-1966

his right to a fair trial because prosecutors struck Summers from the jury in violation of

the principles set forth in Batson. Upon review, we found that defendant established a

prima facie case of purposeful racial discrimination in regard to the State's striking of

Summers and that the trial court's ruling to the contrary was against the manifest weight

of the evidence. Davis, 345 Ill. App. 3d at 907.

       We also held that the trial court erred by improperly collapsing the first and third

steps of the Batson analysis into an undifferentiated review when the court determined

that no prima facie case had been established based in part upon its finding that the

prosecutors were credible. Davis, 345 Ill. App. 3d at 910-11. We found that the trial

court erred in this regard because it was only at the third and final step of the Batson

analysis, after the State had satisfied its step-two burden of production and articulated

its race-neutral reasons for excusing the venireperson in question, that the court was

allowed to evaluate the prosecutor's credibility.

       We subsequently remanded the case to the trial court with directions to conduct

a Batson hearing and proceed with steps two and three of the Batson analysis where

the State was to provide a race-neutral explanation for striking Summers and the trial

court then evaluate whether the proffered explanation was pretextual. We retained

jurisdiction in order to review the trial court's ruling on the Batson matter and to address

remaining issues raised in the appeal. Judge Marjorie C. Laws heard the case following

remand as Judge Edward M. Fiala, who presided over the original voir dire, had since

retired from the bench.

       Upon remand, the trial court conducted a Batson hearing and afterwards

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1-01-1966

concluded there was no intentional discrimination and that the prosecutors' explanations

for peremptorily striking Summers were not pretextual. Defendant now appeals from

that decision.

       As a preliminary matter we address the waiver issue raised

by the State.        The State contends that the principal argument

defendant now raises on appeal is one he never made at the trial

level, namely that the prosecutors' primary explanation for striking Summers

based on his rap sheet was pretextual because they were unaware of the rap sheet at

the time they excluded him. The State's waiver argument is meritless.

       As previously mentioned, we remanded this case to the trial court with directions

to conduct a Batson hearing where the State was to provide a race-neutral explanation

for striking Summers and the trial court then evaluate whether the proffered explanation

was pretextual. We retained jurisdiction in order to review the trial court's ruling on the

Batson matter and we permitted the parties to submit supplemental briefs following the

outcome of the Batson remand hearing. Defendant's argument is not waived.

       Turning to the merits, once a defendant establishes a prima facie case of

purposeful discrimination under Batson and the State satisfies its step-two burden of

production by articulating a race-neutral explanation for excusing the venireperson in

question, the analysis proceeds to the third and final step where the trial court examines

any rebuttal by defense counsel, assesses the genuineness of the State's explanations,

and then determines whether those explanations are sufficient to rebut defendant's

prima facie case. See People v. Baisten, 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060


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1-01-1966

(1990). In doing so, the trial court must make "'a sincere and reasoned attempt to

evaluate the prosecutor's explanations in light of the circumstances of the case.'"

People v. Harris, 129 Ill. 2d 123, 174-75, 544 N.E.2d 357 (1989), quoting People v. Hall,

35 Cal. 3d 161, 167, 197 Cal. Rptr. 71, 75, 672 P.2d 854 (1983). A trial court's

determination that a prosecutor's reasons for striking a prospective juror were

sufficiently race-neutral to withstand a Batson challenge, turns largely on questions of

fact grounded in credibility and is therefore generally accorded great deference and will

only be reversed if it is against the manifest weight of the evidence. Harris, 129 Ill. 2d at

175.

       At the Batson remand hearing, prosecutors who conducted the original voir dire

testified that three factors motivated them to strike Summers: his rap sheet revealed he

was previously arrested for murder and other crimes which he did not divulge during

voir dire; his answers during voir dire led them to believe he was a defense witness in a

prior rape case; and he interrupted Judge Fiala during voir dire. The trial court found

the first proffered explanation regarding the rap sheet sufficiently race-neutral to

withstand the Batson challenge, and after giving defense counsel an opportunity to

respond to the explanation, denied the Batson challenge.

       The information contained in Summers' rap sheet and his misrepresentations

during voir dire provided facially race-neutral reasons for striking him. Concealing a

prior criminal charge constitutes a race-neutral reason for exercising a peremptory

challenge. See People v. Kitchen, 159 Ill.2d 1, 22, 636 N.E.2d 433 (1994). On this

record, we cannot say that the manifest weight of the evidence does not support the trial

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1-01-1966

court's finding that the race-neutral explanation offered by prosecutors was valid.

       Defendant, however, contends that the prosecutors' reliance upon Summers' rap

sheet as a reason for striking him was pretextual because the record indicates that

prosecutors were actually unaware of the rap sheet when they struck him. Defendant

maintains that the prosecutors' failure to alert the trial court to the existence of the rap

sheet during voir dire, even after the court afforded them an opportunity to respond to

defense counsel's Batson motion, and their failure to question Summers about the

content and veracity of the information contained in the rap sheet and his

misrepresentations during voir dire, all indicate that prosecutors were actually unaware

of the rap sheet when they struck Summers and that their subsequent explanation for

striking him based on his criminal history was pretextual. In further support of this

argument defendant points to the comment Judge Laws made at the beginning of the

Batson remand hearing, "first of all, I don't know why the State when they went into the

side bar with Judge Fiala they didn't bring the issue up of the rap sheet at that time.

Had that been done, this case would not have been sent back."

       Defendant also contends that the prosecutors' proffered reasons for striking

Summers were not consistently applied where prosecutors struck Summers purportedly

because he had a criminal history and misrepresented himself during voir dire, yet they

accepted, least likely to decide this case, venireperson Arnold Council, who also had a

criminal history and who also misrepresented himself during voir dire. Defendant

maintains that this inconsistency lends further weight to his argument that the

prosecutors' subsequent explanations for striking Summers based on his criminal

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1-01-1966

history and misrepresentations are pretextual.

      Although we find merit in defendant's arguments, we are constrained to reject

them since the evidence is not strong enough to show that prosecutors were unaware of

Summers' rap sheet when they struck him.

      Defendant next contends he was denied his constitutional right to a fair trial when

the trial court allowed the State to admit as substantive evidence Amos Wards's

handwritten statement to police that defendant admitted shooting the victim. Defendant

maintains that Ward's handwritten statement was inadmissible because no foundation

was laid for its admission and it was impermissibly cumulative to Ward's grand jury

testimony.

      Defendant requests we consider the merits of these

contentions under the plain error rule on the grounds that the

evidence was closely balanced on the issue of whether he acted in

self-defense and because submission of the handwritten statement
to jurors during jury deliberations was so prejudicial he was

denied a fair trial.          We must deny defendant's request because

the record indicates that defense counsel deliberately waived any

issue as to the admissibility of Ward's handwritten statement as

substantive evidence by strategically allowing the statement to

be admitted in support of his theory of self-defense.

      The record shows that not only did defense counsel fail to

object to the publication of Ward's handwritten statement,

counsel also failed to object to its admission, and on cross-


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1-01-1966

examination of Ward, repeatedly attempted to get Ward to admit to

the contents of his statement.   In addition, the record also

shows that in closing arguments, defense counsel utilized the

contents of Ward's handwritten statement and grand jury testimony

to argue defendant's theory of the case.     On this record, we

cannot say the trial court committed plain error in allowing

Ward's handwritten statement to be admitted as substantive

evidence.

     Defendant next maintains that a number of remarks by the

prosecutor during closing argument deprived him of a fair trial

by improperly misstating the law and burden of proof regarding

self-defense; improperly implying that his theory of self-defense

was fabricated; implying that he was predisposed to violence; and

improperly claiming that the shooting was the result of rival

gangs competing for drug business.     Defendant requests we

consider the merits of these contentions under the plain error

rule on the grounds that the evidence was closely balanced and

the remarks so prejudicial he was denied a fair trial.     We must

deny defendant's request.

     A reviewing court will not reverse a jury's verdict on the

bases of improper remarks made during closing argument unless the

comments resulted in substantial prejudice to defendant and

constituted a material factor in his conviction. See People v.

Alvine, 173 Ill. 2d 273, 292-93, 671 N.E.2d 713 (1996).     Having

reviewed the record, we are not convinced that the alleged

                                 -7-
1-01-1966

improper remarks, considered individually or collectively, rose to the level of

plain error or are of such magnitude that defendant was denied a fair trial. Furthermore,

the trial court instructed the jury that closing arguments are not evidence and that any

statements or arguments not based on the evidence should be disregarded. Our courts

have determined that such instructions reduce the likelihood that improper remarks

made during closing argument rise to the level of plain error. See People v. Bratton, 178

Ill. App. 3d 718, 726, 533 N.E.2d 572 (1989).

       Defendant finally contends the trial court abused its discretion in sentencing him

to 18 years' imprisonment by failing to consider mitigating factors such as his young age

(sixteen years old at the time of the offense), lack of criminal history, his family

responsibilities, his low I.Q. of 66, and evidence that he acted in self-defense.

Defendant asserts that we should reduce his sentence pursuant to Supreme Court Rule

615(b)(4) (134 Ill.2d R. 615(b)(4)) or remand the cause for resentencing. We must

disagree with defendant.

       It is well settled that a trial court has broad

discretionary powers in imposing sentence. People v. Stacey, 193

Ill. 2d 203, 209, 737 N.E.2d 626 (2000).                     The trial court is

granted such deference because it is in a better position than

the reviewing court to weigh such factors as the defendant's

credibility, demeanor, general moral character, mentality, social

environment, habits and age. Stacey, 193 Ill. 2d at 209; People

v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991).                           The

standard of review is whether the trial court has abused its

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1-01-1966

discretion in imposing sentence. Streit, 142 Ill. 2d at 19.

     A sentence which falls within the statutory range of a

particular offense is not an abuse of discretion unless it is at

variance with the spirit and purpose of the law or is manifestly

disproportionate to the nature of the offense. People v. Fern,

189 Ill. 2d 48, 54, 723 N.E.2d 207 (1999).    Neither exception

applies in the present case.

     Defendant was sentenced to 18 years' imprisonment for

second-degree murder.   The sentencing range for this offense is

between 4 and 20 years. 730 ILCS 5/5-8-1(a)(1.5) (West 2000).

Defendant's sentence falls within the statutory range.

     In addition, review of the record reveals the trial judge

properly considered the mitigating factors.    Just before imposing

sentence, the trial judge stated:

     "I have had the opportunity to listen to the arguments of

     able counsel in aggravation and mitigation.    I have

     considered those statutory factors as well.    I have read and

     re-read the presentence report and I am thoroughly

     conversant with it as amended.

     I have considered the age of the defendant at the time of

     offense and his age now.   His lack of prior criminal record.

     His potential for rehabilitation.   Mindful he has two

     children, there is a dispute as to whether or not he

     supports those children.

     It's upon a consideration of all and each and every one of

                                -9-
1-01-1966

      these factors that this court is reflected upon and

      accordingly Mr. Davis, for the offense of second degree

      murder for which you stand convicted, you're sentenced to

      the Illinois Department of Corrections penitentiary division

      for a determinant term of 18 years."

      In the instant case, the trial court did not abuse its

discretion in sentencing defendant.                The trial court considered

the relevant factors and the sentence imposed was within the

statutory sentencing range for second-degree murder and was not

manifestly disproportionate to the nature of the offense

committed.

      Accordingly, for the reasons set forth above, the judgment of the circuit court of

Cook County is affirmed.

      Affirmed.

      SOUTH and KARNEZIS, J.J., concur.




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