People v. Henderson (142 Ill. 2d 258, 1990)

JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Demetrius Henderson, was convicted of the murder of Kim Boyd (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)) following a jury trial in the circuit court of Cook County. On the State’s motion, a death penalty hearing was held before the trial judge, defendant having waived his right to a jury at the death penalty hearing. The trial judge found defendant eligible for the death penalty, for he was 18 years old at the time of the murder and had committed • the murder during the course of another felony. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(6).) The trial judge also found that no mitigating factors existed sufficient to preclude imposition of the death sentence (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(h)), and so sentenced defendant to death. In addition to the murder conviction, defendant was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)), for which he was sentenced to 45 years’ imprisonment, and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(a)), for which he was sentenced to 10 years’ imprisonment. Defendant’s post-trial motions were denied. Execution was stayed pending direct review by this court. (Ill. Const. 1970, art. VI, §4(b); Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(1); 107 Ill. 2d Rules 603, 609(a).) We affirm.

FACTS

The sexual assault, kidnapping, and murder of 16-year-old Kim Boyd took place during the early morning hours of July 13, 1986. On the night of July 12-13, there was a party at the house of codefendant Curtis Croft attended by defendant, Boyd, codefendants Croft, Kevin Campbell, and Alonzo Woodard, and others, including Anthony Woodard, who testified for the prosecution. There were various comings and goings during that night until around 3 a.m., when Boyd was alone in the house with defendant, Croft, Campbell, and Alonzo and Anthony Woodard. What happened next was revealed by the testimony of Anthony Woodard, by defendant’s signed statement given to Assistant State’s Attorney Bernard Murray and Chicago police detective Lee Almanza on July 18, 1986, and by the testimony of Dr. Mitre Kalekar, the deputy medical examiner who performed the autopsy on Boyd.

According to defendant’s statement, he called Boyd and Anthony into a separate room and angrily asked Boyd why she was having sexual relations with both Anthony and Alonzo Woodard. Boyd made a “smart remark,” so defendant picked up a roll of wallpaper and hit her in the head. Defendant then called Croft, Campbell, and Alonzo Woodard into the room, and defendant and those three forced Boyd to engage in a variety of sexual acts. After they were finished, defendant talked to Croft and Campbell. about what to do with Boyd. Defendant said they could not just let Boyd go, even though she said she would not say anything, because if he were a girl he would tell what had happened. Instead, defendant said they would have to kill her because he was “not going to spend no time in jail for a bitch.” Defendant then went outside to give a friend’s car a jump. As he returned to the house, he saw Croft and Campbell indicating he should keep quiet and drive his car to the back of the house. When defendant did so, he saw Boyd standing blindfolded; Croft, Campbell, and Anthony and Alonzo Woodard were present. After Anthony began walking back toward the front of the house, Croft and Campbell put Boyd in the trunk of defendant’s car. Campbell said that he, Anthony, and Alonzo would follow, in a second car, defendant’s car containing defendant, Croft, and Boyd. Before driving away, defendant stopped and gave another jump to his friend’s car. Defendant then intentionally evaded the following car, explaining that he did so because he did not want the others to be present when Curtis and he killed Boyd.

Anthony Woodard’s testimony on behalf of the prosecution varied from defendant’s statement primarily by denying that his brother Alonzo and Campbell voluntarily participated in the assault. Anthony testified that defendant and Boyd went into a separate room, that defendant then called him into the room, and that he and Croft joined defendant and Boyd. Defendant ordered Boyd to take off her pants, and when she began fighting back defendant hit her twice in the jaw. While Anthony sat in a chair, defendant and Croft forced Boyd to have sexual intercourse. Anthony told defendant and Croft to stop but did not try to physically stop them because Croft had a knife with a six-inch blade. Anthony could hear his brother Alonzo and Campbell trying to get into the room, but a chair in front of the door prevented them from entering. Later, defendant opened the door and told Alonzo and Campbell to have sex with Boyd; they did so while Croft held a knife on them. Anthony also said that defendant had a knife in his pocket. Defendant then took Boyd into the bathroom, and when they came out Boyd had cleanser on her face. Defendant and Croft tried to confuse Boyd by telling her she was somewhere else. Defendant then said they would have to kill Boyd. While Croft blindfolded Boyd and took her behind the house, defendant went to get his car. Anthony, Alonzo, and Campbell went to the front of the house where they had parked their car, and Anthony saw defendant giving a car a jump. Defendant then drove his car to the back of the house and in a few minutes drove back to the front of the house with Croft in the car. When Campbell asked where Boyd was, Croft patted the trunk of the car. Alonzo offered to take Boyd home, but Croft said he and defendant would do that and tried to ignore the other three. Alonzo, Anthony, and Campbell tried to follow defendant’s car in their own car. When they reached the street where defendant should have turned to take Boyd home, Alonzo, who was driving, blew his horn. But defendant continued on and Alonzo soon lost him in traffic.

Through cross-examination, defendant’s attorney tried to discredit Anthony’s credibility. Anthony testified that he would try to help out his brother and Campbell, who was like a cousin to him, but that he was not related to defendant or Croft. Anthony admitted that he had not tried to physically stop the assault, but had merely asked defendant and Croft to stop. Nor did he try to escape from the room and get help, even though at certain times, when Croft was with Boyd, he only would have had to get by defendant, whose knife was in, his back pocket and who was smaller, although older, than Anthony. Furthermore, Anthony never approached the police to tell them what had happened, waiting until they came to him.

We have only defendant’s statement, and the forensic evidence, to tell us what happened after defendant eluded the other car. Both defendant and Croft expressed some hesitancy about killing Boyd, but in the end decided that they had to do it. Defendant stopped the car in an alley behind the 6000 block of South Carpenter Street in Chicago, and opened the car’s trunk, and he and Croft took Boyd out. She told defendant she could “explain,” but defendant grabbed a switchblade knife Croft was holding and stabbed her twice in the throat. Croft then took the knife and stabbed Boyd, then defendant did so, and they alternated in this way until Boyd had approximately 40 stab wounds in her head, neck, chest, hands, back, and buttocks. Believing she was not yet dead, defendant and Croft got into the car and defendant drove over her three times. They got out of the car, confirmed that she was finally dead, and drove away. Dr. Kalekar testified concerning the multiple stab wounds, bruises, broken bones, and other wounds to the body consistent with being run over and dragged by a car.

Boyd’s body was found later that morning and a police investigation was begun, leading to the arrest of defendant and Curtis Croft on July 17, 1986, at defendant’s home. At the Area 3 Violent Crimes police station during the night of July 17-18, Assistant State’s Attorney Murray and various detectives questioned defendant, Croft, Campbell, Anthony and Alonzo Woodard, and two girls who had attended the party the night of July 12-13. Initially, defendant denied involvement in the murder, although he admitted being at the party. When Assistant State’s Attorney Murray told defendant this was inconsistent with what other witnesses had said, defendant asked what Croft had said. Croft was brought into the room and recounted the statement he had made to the police earlier. Defendant then made both an oral and a court-reported statement.

Defendant’s jury trial was severed from the bench trials of his codefendants; however, all four trials were conducted simultaneously. Additional facts concerning the night of July 12-13, the course of the police investigation, and the conduct of the trial will be related as necessary.

ANALYSIS

Defendant presents numerous arguments for our consideration and requests that we grant him a new trial, or, in the alternative, that we vacate his death sentence and remand for a new death penalty hearing or imposition of a sentence other than death. Defendant’s arguments concern the selection of the jury, the admission and exclusion of evidence at trial, the conduct of the sentencing hearing, the propriety of his sentences of death and imprisonment, and other matters.

Jury Selection

Defendant first challenges his convictions on the basis that, in selecting the jury which convicted him, the prosecution purposefully discriminated against black venire members when exercising peremptory challenges, and thus violated the equal protection clause of the fourteenth amendment (U.S. Const., amend. XIV), as construed in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. The Supreme Court in Bat-son held that the prosecution denies a defendant his rights under the equal protection clause if the prosecution exercises peremptory challenges so as to purposefully exclude members of a defendant’s race from the jury. In order to establish a Batson claim, a defendant has to first establish a prima facie case by showing that he is a member of a cognizable racial group and that the prosecution exercised peremptory challenges to exclude from the jury venire members who share his race, and by pointing to any other relevant circumstances that raise an inference of purposeful discrimination by the prosecution. (See People v. Hope (1990), 137 Ill. 2d 430, 452-56 (discussing the process used in adjudicating a Batson claim).) In this case, the issue is whether the trial court erred in ruling that defendant had not established a prima facie case.

After a jury of 12 and 2 alternate jurors had been sworn, but before opening statements had been made, defense counsel moved for a mistrial on the basis that the prosecution had systematically excluded black venire members from the jury through the exercise of peremptory challenges. Defense counsel noted that of the nine venire members peremptorily challenged by the prosecution, six were black (appellate defense counsel acknowledges that the prosecution actually used ten, not nine, peremptory challenges). Defense counsel further noted that the jury chosen consisted of four white males, six white females (two of whom were apparently Hispanic), and two black females. The two alternate jurors were a black male and a white female. To buttress his motion, defense counsel also referred to the prosecution’s exercise of peremptory challenges during the aborted voir dire of the first venire called in this case: Of the three peremptory challenges exercised by the prosecution during voir dire of this first venire, two were exercised against blacks. (Voir dire of the first venire proceeded only as far as the selection of a panel of four jurors, at which time the entire venire and the four jurors chosen from it were dismissed by the trial judge because the judge, without objection from counsel, excused one of the four chosen jurors, the only black on that panel, after finding that the juror would not be able to fully concentrate on the case, and because the defense refused to accept the broken panel of jurors.) In framing his Batson claim on appeal, defendant has also included those three peremptory challenges exercised by the prosecution during voir dire of the first venire. The trial court reserved ruling on defendant’s motion for a mistrial until the morning of the next day.

At that time one juror, apparently one of the two Hispanic females, who had told the trial judge that she would be unable to concentrate on the trial owing to serious personal problems, was brought into chambers to repeat her concerns in the presence of the lawyers. The judge excused this juror without objection. The first alternate, a black male, then became a juror.

The judge then denied defendant’s motion for a mistrial, finding that the prosecution had not systematically excluded blacks from the jury and therefore would not have to explain the reasons for its challenges, and thereby implicitly finding that defendant had not made a prima facie case of purposeful discrimination as required by Batson. In announcing its ruling, the court documented the jury selection procedure that had been used, the racial makeup of the jury, and the peremptory challenges used by the prosecution.

Because the record is unclear as to certain facts, in evaluating defendant’s claim of purposeful discrimination, we have had to make our own review of the record to determine the number of challenges exercised by the parties and the races of those challenged by the prosecution. We have found the following pertinent facts, construing any ambiguity in the record against defendant, who had the burden of preserving the record (see, e.g., People v. Brown (1987), 152 Ill. App. 3d 996, 1002).

The jury selection procedure used was to seat panels of venire members (three panels were seated, numbering 14, 14, and 12), have the trial judge inquire of them initially, and then allow inquiry first by the defense and then by the prosecution as to the first panel, and first by the prosecution and then by the defense as to the second and third panels. Following the questioning of each panel, the defense and the prosecution gave the trial judge a list of those venire members whom they challenged, without revealing these challenges to the opposition. This procedure was used on the recommendation of defense counsel.

Of the 40 venire members examined, 3 were excused for cause. Prosecution and defense were each allotted 14 peremptory challenges; the prosecution used 10, while the defense used 13. Of the 10 peremptory challenges exercised by the prosecution, 6 were exercised against blacks. Of the 27 venire members accepted by the prosecution, 5 were black. After the defense exercised its challenges, 3 of the 14 venire members chosen to serve as jurors or alternates, and 3 of the 12 jurors who convicted defendant (the black alternate became a juror after the first day of testimony), were black. The relevant racial statistics are thus: 30% of the pool of 37 venire members not challenged for cause was black, compared to black representation of 19% among the 27 venire members accepted by the prosecution; also, 60% of the State’s 10 peremptory challenges were exercised against the black 30% of the venire, and 21% of the 14-member jury was black.

In determining whether the trial judge correctly ruled that defendant failed to establish a prima facie case of purposeful discrimination, we constrain our inquiry in certain ways: We consider the voir dire of the second venire only; we disregard any racial distinction between Hispanic and white venire members; and we consider the jury as a group of 14 which includes the 2 alternates selected, not as a jury of 12.

Contrary to defendant’s urgings, we decline to consider the prosecution’s peremptory challenges to members of the first venire, before that venire was dismissed. As stated, a panel of four jurors was initially selected from the first venire, and in selecting this panel the prosecution exercised three peremptory challenges, two of which were against blacks. We decline to consider these challenges because we recognize that attorneys approach the selection of a jury as one entire process, during which an attorney individually assesses each venire member’s character, views, and impartiality, and then decides which venire members to challenge and which to accept while reserving a sufficient number of challenges for use against those venire members who have not yet been questioned. Given the complex strategic nature of .the jury selection process and the exercise of peremptory challenges, we find that the facts involved in the selection of a single panel of four jurors are not probative of whether the prosecution purposefully discriminated in the selection of a full jury. For the same reason, we reject the State’s approach of analyzing the racial balance of the prosecution’s challenges by separately analyzing its challenges to each of the three panels of venire members seated from the second venire, as well as its challenges as a whole.

We disregard the racial distinction between Hispanic and white venire members accepted by the prosecution, a distinction which the trial judge apparently relied on in part, for he mentioned the presence of two Hispanics on the jury, making a total of “five minority people.” Because defendant is black, the only relevant racial distinctions among venire members in this case are black and nonblack. In establishing a prima facie case of prosecutorial discrimination against venire members of a defendant’s race, a defendant can only rely on the prosecution’s exercise of “peremptory challenges to remove from the venire members of the defendant’s race” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; see People v. Holman (1989), 132 Ill. 2d 128, 171 (trial court correctly refused to consider prosecution’s challenges to one Hispanic and one Filipino venire member, for defendant was black)). By the same token, we find that, in determining whether a prima facie case is established, it is irrelevant whether the prosecution accepted some venire members who belonged to a racial minority other than that of defendant.

Because of the method of jury selection used in this case, we include in our review not only the 12 original jurors, but also the 2 alternate jurors. The jury was selected from three panels of venire members, numbering 14, 14, and 12. By the time the third panel was called, 10 jurors had been selected. Thus, when the final panel of 12 was questioned, 2 jurors and 2 alternates were needed. Once again, the prosecution and the defense simultaneously submitted to the trial judge their challenges. The result was that 8 of these 12 venire members were challenged and 4, the exact number of jurors needed, were accepted. Of the four accepted, the first two who had been called became jurors, while the other two became the first and second alternates. Given this procedure of selecting the alternates from the same venire panel as the jurors, not from a separate panel, and given the fact that it was impossible for the prosecution to know, at the time it exercised its challenges, that the black male venire member whom it accepted would not initially be seated as a juror, we find the races of the two alternate jurors to be relevant in deciding defendant’s claim. (The black male, Juror M, was the fifth venire member called; the defense had three peremptory challenges remaining and the prosecution had eight; if the prosecution had wanted to minimize the likelihood of Juror M’s becoming a juror, as opposed to an alternate juror, yet had been hesitant to strike him, it would not have challenged any of the four venire members who preceded Juror M, hoping the defense would not use all three of its challenges against three of the first four venire members; but in fact the prosecution challenged the third venire member, a white female.)

With this understanding of the factual boundaries of our review, we consider the arguments of the parties. The first decision we must make is whether defendant is able to present a Batson claim to us, for the State asserts that this claim was waived because defendant’s objection to the prosecution’s use of peremptory challenges was untimely. The State is correct; defendant waived his Batson claim by voicing his objection and moving for a mistrial in an untimely manner, not doing so until after the jury had been sworn. (People v. Andrews (1989), 132 Ill. 2d 451, 457; People v. Harris (1989), 129 Ill. 2d 123, 170-71.) Nonetheless, we consider defendant’s Batson claim because, for its part, the State’s right to raise defendant’s waiver was itself waived when the prosecution neglected to argue the untimeliness of defendant’s motion at the time the motion was made, and instead attacked the motion’s merits. Andrews, 132 Ill. 2d at 458; see also Harris, 129 Ill. 2d at 171 (prosecution waived argument that defendant’s claim of prosecutorial discrimination against black venire members was waived when untimely made because it did not raise waiver argument until after Batson hearing had been held).

On the merits of his claim, defendant contends that the numerical racial imbalance of the prosecution’s peremptory challenges, 6 of 10 being exercised against blacks, alone raises an inference of purposeful discrimination and establishes a prima facie case. Defendant cites cases in which the appellate court found a prima facie case established by similar numbers. (See, e.g., People v. Seals (1987), 153 Ill. App. 3d 417 (prima facie case established where prosecution used 6 of 10 challenges against blacks without any apparent nonracial reason).) Besides the black-nonblack ratio of prosecution challenges, defendant argues that the following facts create an inference of purposeful discrimination: The prosecution struck all six blacks without asking them any questions probative of their backgrounds or impartiality, striking two of the six without asking them any questions, and striking the other four after asking such general questions as whether they could give the State a fair trial; the challenged blacks were heterogeneous in all respects except race; the only respect in which the challenged blacks could be distinguished from the white jurors was by race; and defendants in Cook County frequently claim that the prosecution systematically excluded blacks from their juries. Defendant discounts the relevancy of the fact that three blacks served on his jury, arguing that the issue is whether the prosecution discriminated against any of the six blacks it struck, not whether it failed to discriminate against the three black jurors.

Responding to defendant’s arguments, the State reminds us that a prima facie case of purposeful discrimination cannot be established merely by the number of blacks stricken by the prosecution (see, e.g., People v. Hooper (1989), 133 Ill. 2d 469, 505), and mentions other factors which this court has found relevant in ruling on a Batson claim. Also, the State makes the odd assertion that when each panel of venire members is examined individually it becomes apparent that “the prosecution exercised practically the same number of peremptory challenges to remove whites as blacks”; we have already rejected the method of analyzing Batson claims by fragmenting the jury selection process. Next, the State points out that the prosecution accepted at least one black from each panel and argues that this shows the prosecution did not exclude as many blacks as it could have done, a relevant factor (see, e.g., United States v. Montgomery (8th Cir. 1987), 819 F.2d 847, 851). In addition, the State believes that any inference of discrimination is undercut by the fact that 25% of the jurors, 3 of 12, were black, about the same as the percentage of the Cook County population 18 years old and older.

The State also contends that more than race distinguishes the stricken black venire members from white venire members accepted by the prosecution. Whereas many of the accepted white venire members were crime victims, one had a friend who had been raped, one had been a parole officer, one was training to be a policeman, and others knew lawyers and police officers, five of the six stricken black venire members did not share these characteristics. The State also claims that several of the stricken blacks had characteristics which the prosecution may have considered to be unfavorable; we find the factual support for this latter claim to be extremely weak. Additionally, the State claims the stricken blacks were similar in respects other than race, yet supports this claim merely by stating that most of them (in reality only three of six) lived alone and were single. The State also notes that the record does not evidence the age of each venire member, a possibly legitimate distinguishing factor. The State denies that the number of times defendants in Cook County have claimed prosecutorial discrimination during jury selection is relevant; while the number of such claims proved might be relevant, defendant did not provide that information. On the other hand, one relevant fact in this case is that the victim and most of the witnesses are black, as is defendant, tending to negate a discriminatory motive by the prosecution. (See People v. Evans (1988), 125 Ill. 2d 50, 66 (racial characteristics of crime are relevant when ruling on establishment of prima facie case).) As a final point, the State mentions this court’s previous holding that a trial court’s finding that a defendant has not established a prima facie Batson claim will be overturned only if against the manifest weight of the evidence (People v. Brisbon (1989), 129 Ill. 2d 200, 231), and the Supreme Court’s comment in Batson that a reviewing court should give “great deference” to a trial court’s finding on intentional discrimination because it largely depends on an assessment of credibility (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21).

Defendant responds to these arguments by asserting that, though the State claims that one possible reason for the prosecution’s striking five of the six excluded black venire members is that they lacked characteristics the prosecution might have seen as favorable, some of the accepted nonblack jurors likewise lacked these characteristics (significantly, defendant limits his argument only to nonblack jurors, excluding from his analysis those nonblack venire members accepted by the prosecution but stricken by defendant); the State fails to provide credible facts to support its argument that any stricken black venire members had characteristics unfavorable to the prosecution; and the characteristics of being single and living alone, cited by the State as a nonracial difference between the stricken blacks and the accepted non-blacks, not only were not possessed by three of the stricken blacks, but in fact were possessed by two white jurors. Defendant disputes that the fact that defendant, the victim, and many witnesses were black militates against the prosecution’s possessing a discriminatory motive'. For one thing, discrimination is illogical — if the prosecution was “ ‘of a mind to discriminate’ ” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723, quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 97 L. Ed. 1244, 1248, 73 S. Ct. 891, 892), it may have concluded that black jurors would be less likely to convict a black defendant even if the murder victim was also black. Furthermore, defendant thinks the two most crucial prosecution witnesses were a white policeman and a white assistant State’s Attorney, both of whom testified to defendant’s questioning on the night of July 17, 1986, when he confessed. Defendant also denies that the trial court’s finding of no prima facie case should be given any deference by us, for the quotation the State took from Batson regarding the deference to be given to a trial court’s ruling referred to a trial judge’s analysis of neutral explanations offered by the prosecutor, at which time a trial judge assesses the prosecutor’s credibility (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21).

The standard of review we apply, in determining whether the trial judge erred in ruling that defendant had failed to establish a prima facie case of purposeful prosecutorial discrimination against black venire members, is whether this ruling is against the manifest weight of the evidence. (Brisbon, 129 Ill. 2d at 231; People v. Mahaffey (1989), 128 Ill. 2d 388, 413.) In making this determination, because defendant has first shown he is a member of a cognizable racial group and members of the same racial group were peremptorily challenged by the prosecution (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723 (first element of a prima facie case)), we will consider all facts which reasonably indicate or refute purposeful discrimination by the prosecution, not just the number of challenges exercised against black venire members (see Hooper, 133 Ill. 2d at 505; People v. Holman (1989), 132 Ill. 2d 128, 172). Other factors from which an inference of discrimination can be drawn are: a disproportionate number of strikes against blacks, especially when so disproportionate as to present a “pattern” (see, e.g., Hope, 137 Ill. 2d at 462-63; Mahaffey, 128 Ill. 2d at 413); the level of black representation on the jury as compared to the venire (Hooper, 133 Ill. 2d at 503; Mahaffey, 128 Ill. 2d at 413); whether the stricken black venire members are heterogeneous in every respect except race (e.g., Hooper, 133 Ill. 2d at 503; Mahaffey, 128 Ill. 2d at 413); the prosecutor’s questions during voir dire and statements when exercising challenges (Hooper, 133 Ill. 2d at 503; Holman, 132 Ill. 2d at 172-73); and the race of the defendant, victim, and witnesses (e.g., Hope, 137 Ill. 2d at 453; Holman, 132 Ill. 2d at 172-73).

Viewing all the relevant facts of this case, we cannot say that the trial court’s finding that defendant failed to establish a prima facie case is against the manifest weight of the evidence. The only factor strongly suggesting purposeful discrimination is the disproportionality of the prosecution’s challenges to black as opposed to non-black venire members; 6 of the prosecution’s 10 peremptory challenges, or 60%, were used against blacks, who constituted only 30% of the venire members not excused for cause. Yet this disproportionality is not so severe that it creates a “pattern.” All other relevant factors tend to refute the idea of discrimination, weigh neutrally in the balance, or mildly tend to suggest discrimination.

A factor that tends to refute an inference of discrimination, or whose value is, at most, neutral, is that this black defendant was found guilty of raping and murdering a young black woman. Despite defendant’s view that the illogical nature of discrimination makes a crime’s racial character irrelevant, we have to employ logic in our analysis; thus, we find that, when deducing the existence of a prima facie case of purposeful discrimination, whether or not the defendant and the defendant’s victim are members of the same cognizable racial group is a relevant factor (see, e.g., Hope, 137 Ill. 2d at 453). In a case where the defendant is black and the victim is white, we recognize, at the prima facie stage of establishing a Batson claim, that there is a real possibility that the prosecution, in its efforts to procure a conviction, will use its challenges to secure as many white jurors as possible in order to enlist any racial fears or hatred those white jurors might possess. On the other hand, in a case where both the defendant and victim are black, their racial characteristics do not warrant an inference, at the prima facie stage, that the prosecution discriminated against venire members who were black. Furthermore, we refuse to conclude that the fact that the defendant is black supports an inference of prosecutorial discrimination regardless of the victim’s race.

Nor do we infer a discriminatory motive by the prosecution from the fact that the assistant State’s Attorney who elicited defendant’s confession and the police officer who testified to the course of the murder investigation were white. In fact, we believe the “star” prosecution witness was Anthony Woodard, the black youth who provided the.only evidence, other than defendant’s confession, that defendant sexually assaulted Boyd and drove off with her in the trunk of his car in the early morning hours of July 13,1986.

In this case, the heterogeneity of the stricken black venire members is a neutral factor. Our review of the record shows that five of the six were nondiverse in respects other than race. Five of the six were single and had a college education; three of these five lived alone, and the other two lived with immediate family. The sixth stricken black venire member was separated from her husband, had three daughters ranging in age from 22 to 30, apparently lived alone, and was unemployed, as were two of her three daughters. While these six venire members did not share identical backgrounds, and while it is true that the prosecution accepted white venire members who were single and lived alone, at this stage of a Bat-son claim we are only concerned with whether the stricken black venire members shared any characteristics other than race; it is not our role to search for possible reasons for the prosecution’s strikes or for similarities between stricken black and accepted white venire members.

Another neutral factor here is the number and nature of the questions the prosecutor asked stricken black venire members and the statements the prosecutor made when exercising challenges. True, the prosecutor failed to ask any probative questions about the stricken black venire members’ backgrounds or personalities; but, the fact is, the prosecutor failed to ask such probative questions of any venire members, black, white, or Hispanic. With one exception, the prosecutor limited his questions to general "fair trial” kinds of questions; the one exception was the prosecutor’s asking a female black venire member, whom the prosecution accepted and who became a juror, about an attack on her husband and his crippling on-the-job injury. When exercising its challenges, the prosecution made no statements.

The final relevant factor is the level of black representation on the jury as compared to the venire, and here there is some support for an inference of discrimination. Of the 37 people not excused for cause, 11 were black, or 30%; of the 14-member jury there were 3 blacks, or 21%; and of the 27 venire members accepted by the prosecution, 5 were black, or 19%. Thus, there was a slight disparity between the level of black representation on the venire, 30%, and that on the jury, 21%.

In sum, considering all the relevant factors, only two factors (the percentage of blacks on the venire not excused for cause compared to the percentage of the prosecution’s peremptory challenges exercised against and as compared to the percentage of blacks on the jury) tend slightly to suggest purposeful discrimination, while the others are either neutral or tend to refute such a suggestion. Therefore, we cannot say the trial court’s finding that defendant failed to establish a prima facie case of purposeful discrimination by the prosecution’s exercise of peremptory challenges is against the manifest weight of the evidence.

Defendant’s second claim of reversible error during jury selection is that the trial judge questioned two sworn jurors and one prospective juror, then excused all three for cause, without defendant’s being present (defense and prosecution counsel and a court reporter were present). This claim is controlled by our recent decision of People v. Bean (1990), 137 Ill. 2d 65, 78-89. The legal arguments defendant presents here are virtually identical to those presented by the defendant in Bean: Defendant had a constitutional right to be personally present at the questioning of these jurors in chambers, his attorney had no power to waive this right, and the trial court committed reversible error by denying him this right. In Bean, we held that although criminal defendants have a broad right to be present at every stage of trial, including throughout jury selection, under either the Illinois or the United States Constitution unconstitutional violations of this right requiring reversal of a conviction and remand for a new trial occur only when as a consequence a defendant is deprived of a fair and just trial, such as when a defendant is tried by a prejudiced jury. If the jury which tried a defendant appears to have been impartial, the defendant’s constitutional rights were not violated even though he was absent from the in-chambers voir dire of one or more venire members, for both the Illinois and the United States Constitutions guarantee defendants a jury that is impartial, not a jury of their choice. Even though the facts in this case differ from those in Bean, our holding in Bean is applicable. We will, however, briefly review these facts.

All three of these jurors were excused for cause by the trial judge. The two sworn jurors were both excused because aspects of their personal life caused them to doubt that they could concentrate on the evidence presented at trial and fulfill their duties as jurors. The trial judge asked both defense and prosecution counsel if they wished to question either of these jurors; they did not. He then asked if there was any objection to excusing these jurors for cause; there was not. Concerning the prospective juror excused for cause, she had already submitted to questioning by the trial judge and defense and prosecution counsel when the bailiff informed the trial judge this woman had been convicted for unlawful use of weapons, a conviction she had never mentioned (though asked if she had ever been the accused in a criminal case) or written on her juror information card. After questioning her in chambers, the judge excused her for cause, finding that her failure to disclose the conviction, after taking an oath as a venire member to tell the truth, indicated she would not properly do her duty as a juror; defense counsel objected, believing this woman had simply made a mistake.

On these facts, we find that defendant’s absence from this in-chambers questioning did not deprive him of an impartial jury, and so does not warrant reversal of his conviction. Each of these three jurors was excused for cause by the trial judge; as the time for the parties to exercise peremptory challenges and challenges for cause had passed, the utmost that defendant could have done if present would have been to register his own objections to these excusáis. Yet, as the decision whether to excuse a juror is within a trial judge’s discretion (People v. Cole (1973), 54 Ill. 2d 401, 414), and the trial judge in this case clearly acted within his discretion, we cannot conclude that defendant’s presence would have had any real effect. More importantly, as we found in Bean, the record does not indicate that the jurors who served in the place of the three people who were excused were prejudiced against defendant. There was no reversible error.

Legality of the Warrantless Arrest

According to defendant, the trial court erred when it denied his pretrial motion to quash his warrantless arrest and to suppress his oral and written statements admitting his part in the sexual assault and murder of Boyd, which he made after being arrested. In denying this motion, the trial court found both that defendant’s mother consented to the police entry into her home and that exigent circumstances justified the police’s failure to procure an arrest warrant. We will not reverse the trial court’s denial of defendant’s motion to quash and suppress unless it was clearly erroneous. People v. White (1987), 117 Ill. 2d 194, 209; People v. Clark (1982), 92 Ill. 2d 96, 99.

At the hearing held on this issue, two police officers who participated in the arrest testified, as did defendant’s mother. The account given by the officers of how the police gained entry to the apartment that defendant and his mother shared differed from the account given by defendant’s mother.

Detectives Almanza and Tuider described the events of July 17, 1986, as follows. Almanza and other police officers talked to Alonzo Woodard at Area 3 headquarters. Alonzo said he had been at the party on the night of July 12-13 when defendant and Curtis Croft brought Boyd into a separate room; Alonzo later heard Boyd screaming; when Alonzo tried to enter the room, defendant angrily told him to get out. Almanza, Tuider, three other detectives, and Alonzo Woodard drove to defendant’s apartment in two unmarked squad cars; a marked squad car with two uniformed police officers was also present. None of the officers had an arrest warrant. At approximately 5:30 p.m., Almanza and Tuider knocked on the front door of defendant’s apartment; there was no response, so they returned to their car. At approximately 6:25 p.m., a car which Alonzo identified as defendant’s was driven into the parking lot. Almanza and Tuider walked to the car and asked the driver his name; it was Croft. Croft was arrested and was read his Miranda rights. Tuider talked to Croft. Croft said he knew the police were there because of the girl’s murder, but he did not “do it,” defendant did. Croft also said that defendant was in his apartment, waiting for Croft. On hearing this, Almanza, Tuider, a third detective, and a uniformed officer returned to the apartment. While Tuider and the uniformed officer watched one exit, Almanza and the other detective knocked on the front door. Defendant’s mother opened the door. Almanza identified himself as a police officer and asked if defendant was home, to which defendant’s mother answered “yes”; according to Almanza, she then stepped back and pointed toward a bedroom. Almanza thanked her and he and the other detective walked into the bedroom, saw defendant, and arrested him. At this point, there were only two officers in the apartment and neither had drawn his gun. A few minutes later, Tuider and one or two uniformed officers entered. Defendant was handcuffed and taken to Area 3 headquarters.

Defendant’s mother told a different version. She testified that on opening the door she saw five or six police officers with guns in their hands (on cross-examination she said she remembered seeing only two guns). These officers “just rushed in and asked me was Demetrius Henderson there”; when the officers asked this, they were in her home without first having asked her permission to enter. She said defendant was in his bedroom. The officers entered the bedroom, arrested defendant, and handcuffed him. On cross-examination, defendant’s mother said she had not heard the police knocking on the door at 5:30 p.m., although she had been home. Inconsistencies in her testimony were also revealed.

The trial court found that the police officers had had probable cause to arrest defendant, that they had received consent to enter the apartment from defendant’s mother, and that exigent circumstances had existed to validate the warrantless arrest. In finding consent, the court first found the testimony of the officers to be more credible than that of defendant’s mother. The court then found that defendant’s mother consented to the entry by telling the two officers, who used no force and had their guns bolstered, that defendant was home and “by stepping back from the door and pointing to the bedroom.” The court gave weight to the fact that defendant’s mother “did not say to them,, do not come in. She did not say to them any words to indicate to the police that they should not enter.”

Defendant appeals this ruling, asserting that even if the officers’ version is accepted, the actions of defendant’s mother in stepping back from the open front door and pointing to a bedroom cannot be considered consent to the police’s entering her apartment. Rather, her actions were a mere acknowledgment that defendant was home. Furthermore, as support for its ruling, the trial court erroneously relied on the failure of defendant’s mother to object to the police’s entry for a failure to object cannot be equated with consent to enter. Defendant cites a Federal appellate case holding that consent to enter must be “ ‘unequivocal and specific.’ ” (United States v. Gay (10th Cir. 1985), 774 F.2d 368, 376 (search of automobile), quoting United States v. Recalde (10th Cir. 1985), 761 F.2d 1448, 1453.) In defendant’s opinion, because the officers never asked permission to enter the apartment of defendant’s mother, she could not have consented to a request that was never made. Protecting the sanctity of the home demands “more to overcome the warrant requirement than an ambiguous gesture made in response to an inquiry that concededly did not even constitute a request to enter.” For these reasons, defendant believes the prosecution failed to prove that there was valid consent (see People v. White (1987), 117 Ill. 2d 194, 221).

Defendant’s argument suggests that the unequivocal and specific consent that is necessary can only exist if the police expressly ask to enter and are verbally answered in the affirmative; conduct or body language of an occupant of a home is insufficient. Defendant relies on two factually similar cases in which consent to enter was found not to have been given. Our appellate court, in People v. Johnson (1981), 99 Ill. App. 3d 863, held that the trial court did not err when it found that the police had not been given consent to enter defendant’s home, and so granted defendant’s motion to quash his arrest and suppress evidence. In response to the knock of two police officers, defendant’s grandmother opened the main front door but left the screen door closed; the officers identified themselves and, seeing the suspect they were looking for on the stairs inside the house, one officer told defendant’s grandmother they wanted to arrest him; at that, she opened the screen door; the officers entered and arrested defendant. When defendant’s grandmother opened the screen door she did not orally invite the officers to enter, nor did she tell them not to enter. The appellate court held that, because the police never asked permission to enter the home and because there was no evidence of the grandmother’s subjective state of mind, which is necessary to determine the voluntariness of consent, her conduct in merely opening the door in response to the officer’s statement that they wanted to arrest the man they saw was not voluntary consent but merely “ ‘acquiescence to a claim of lawful authority,’ ” which the Supreme Court found to be insufficient in Bumper v. North Carolina (1968), 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792. (Johnson, 99 Ill. App. 3d at 865.) Defendant also relies on a case from the Colorado Court of Appeals, holding that a trial court erred in finding that “passive consent” to a police entry was given by the defendant’s mother when she did not object when officers pushed past her and entered her home; a mere failure to object to police entry into one’s home is not clear affirmative evidence of consent. People v. Santisteven (Colo. App. 1984), 693 P.2d 1008.

In response, the State contends that the conduct ot defendant’s mother, in the absence of any show of force by the police, constituted voluntary consent, and that the trial court’s finding of consent was largely a finding of fact and so is not to be reversed unless against the manifest weight of the evidence (People v. Clark (1982), 92 Ill. 2d 96, 99 (reverse ruling on a motion to suppress only if clearly unreasonable)). The State also distinguishes the two cases upon which defendant relies. Johnson was simply decided wrongly, for by opening the screen door defendant’s grandmother gave her consent. Moreover, whereas Johnson was in part decided on the grounds that there was no evidence of the grandmother’s state of mind, in the present case defendant’s mother did testify, testimony to which the trial court gave little weight. Santisteven is easily distinguishable by the lack of any evidence of affirmative conduct in that case, there being only evidence of a failure to object.

We find that the trial court’s determination that defendant’s mother consented to the police entry was not clearly erroneous (and therefore do not address the other ground for the trial court’s denial of defendant’s motion — the existence of exigent circumstances). Defendant’s inculpating statements to the police were admissible.

The fourth amendment (U.S. Const., amend. IV) bars warrantless and nonconsensual arrests in the home, absent exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) Yet, what words or conduct constitute consent to enter a home has never been explicated by the Supreme Court. (But see Bumper, 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (defendant’s grandmother’s allowing police to enter after they falsely claimed to have a search warrant was not voluntary consent, but the product of coercion).) Although the lower courts generally agree that consent to enter a residence validates a warrantless arrest (2 W. LaFave, Search & Seizure §6.1(c), at 582 (2d ed. 1987) (and cases cited)), there is little authority as to what constitutes consent in the absence of an express verbal statement. But see United States v. Briley (8th Cir. 1984), 726 F.2d 1301 (valid consent was given when defendant’s girlfriend told police officers defendant was in her apartment and they should come with her, and girlfriend then opened apartment door wide and gestured toward defendant, who was standing in the apartment; police entered and arrested defendant); State v. Blair (Mo. 1982), 638 S.W.2d 739 (consent given by woman’s opening apartment door in response to police officer’s knock, and, after officer asked if defendant were there, opening door wide and stepping back; officer then walked to back of apartment and arrested defendant).

This court has held that a warrantless arrest in the home is rendered valid when the police are given voluntary consent by a defendant or a third party who has control over the premises. (Compare People v. Bean (1981), 84 Ill. 2d 64, 69-70 (defendant’s mother expressly invited police to enter and they did not need to get consent to advance past threshold and enter another room), with People v. White (1987), 117 Ill. 2d 194, 221 (no consent when police pushed past man who opened front door without requesting his permission to enter).) But this court has not decided what standard the alleged consent has to meet or whether the consent needs to be unequivocal and specific. We now hold that, when a court is deciding whether consent was given (not whether that consent was voluntary), the circumstances must have been such that the police could have reasonably believed they had been given consent to enter. (Cf. Illinois v. Rodriguez (1990), 497 U.S._, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (search of home valid if police given consent to enter by one they reasonably believed had authority to consent).) This test is consistent with the fourth amendment’s proscription “against unreasonable searches and seizures.” See 3 W. LaFave, Search & Seizure §8.1(b), at 156-59 (2d ed. 1987).

In the present case, we find that when defendant’s mother said defendant was in the apartment and then stepped back from the open door and pointed toward defendant’s bedroom, the police officers’ belief that she was consenting to their entry into the apartment was a reasonable belief. Her conduct was a wordless invitation to enter, and faced with this conduct the officers need not have asked for permission to enter and received verbal confirmation. Furthermore, although a failure to object alone cannot be considered consent to enter (People v. Santisteven (Colo. App. 1984), 693 P.2d 1008), the trial court was justified in giving some weight to the absence of any objection by defendant’s mother, for this was some evidence from which the officers could reasonably have inferred consent to enter. Although defendant’s argument is limited to asserting that there was no consent, we also find that the consent was voluntary and extended to defendant’s bedroom. (See Bean, 84 Ill. 2d at 70 (once invited into apartment, police could walk throughout it looking for defendant; they did not have to wait for defendant to confront them); see also State v. Filiatreau (1981), 274 Ark. 430, 625 S.W.2d 494.) Nor did the officers need to announce their intention to arrest defendant before entering through the open door. (See Briley, 726 F.2d at 1305; 3 W. LaFave, Search & Seizure §6.1(c), at 583 (2d ed. 1987) (fourth amendment merely requires consent to enter a home, not consent to enter in order to carry out a specified purpose).) For these reasons, we find that the trial court’s ruling that the conduct of defendant’s mother constituted consent was not clearly erroneous (see White, 117 I. 2d at 209).

Evidentiary Issues

Defendant contends that errors made by the trial judge in admitting certain evidence require the reversal of his conviction and granting of a new trial. We disagree, for we find that, as to each of these evidentiary issues, no error was made.

Defendant believes that the admission of portions of Detective Tuider’s and Assistant State’s Attorney Murray’s testimony deprived him of his sixth amendment rights to confront and cross-examine witnesses against him (U.S. Const., amend. YI). Defendant asserts that the prosecutor’s questions, and the answers given by Tuider and Murray, were improper because they obliquely suggested that codefendant Alonzo Woodard and other codefendants had told the police that defendant was involved in the sexual assault, kidnapping, and murder of Boyd. Defendant believes that this line of questioning was comparable to admitting a codefendant’s confession that directly implicates a defendant, which the Supreme Court has held violates a defendant’s sixth amendment rights (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620; cf. Richardson v. Marsh (1987), 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (codefendant’s statement with references to defendant redacted is admissible); see also People v. Cruz (1988), 121 Ill. 2d 321 (defendant’s sixth amendment rights violated when police officers testified to statements made by one of two codefendants, even though the officers substituted the words “some friends” and “two other named individuals” for names of defendant and other codefendant, because circumstances of the trial created obvious implication that defendant was one of these “friends”)).

Tuider’s and Murray’s testimony showed that, on July 17, Tuider interviewed defendant, who denied knowing anything about Boyd’s murder. Murray then talked to Campbell, Croft, Alonzo Woodard, and two girls who had attended the party on the night of July 12-13, developing information about the murder. Murray then reinterviewed defendant. Murray testified that defendant initially told him that, although he had been at the party, nothing eventful occurred, and at some time he fell asleep and slept until the next morning. Murray told defendant “that what he told me was inconsistent with what other witnesses had told me.” It is this statement that defendant finds prejudicial as suggesting that the “other witnesses,” including his codefendants, had implicated defendant in these crimes.

The portion of Tuider’s testimony that defendant highlights involved the issue of whether defendant became a “suspect” after the police talked to Alonzo Woodard. On redirect examination, Tuider and the prosecutor had this exchange:

“Q. Mr. Linn asked you some questions about Curtis Croft being the first suspect in this case, do you recall those questions, detective?

A. Yes, sir, I do.

Q. So it’s clear for the ladies and gentlemen, when Curtis Croft was a suspect or the first suspect, as Mr. Linn characterized him, that was based on information that you or your brother officers had developed from Alonzo Woodard, is that correct?

A. Yes, sir.

Q. And would it be fair to characterize the status of the suspects in the case at that time as not only being Curtis Crawford or Curtis Croft, but also being Demetrius Henderson?”

At this point defense counsel objected, and, during a sidebar, argued that Tuider was telling the jury that Alonzo had incriminated defendant. The trial judge said that, though these questions violated “the spirit of the severance,” they were in response to defense counsel’s cross-examination of Tuider when Tuider had answered yes to the question whether Croft had been the “first suspect” in the murder of Boyd (the prosecutor had objected to this question and use of the word “suspect,” and the trial judge had said he would “give [the prosecutor] an opportunity on re-direct”); the trial judge allowed the trial to proceed without expressly ruling on defense counsel’s objection. The prosecutor never got an answer to his question whether defendant became a “suspect” after the police talked to Alonzo, but he did subsequently elicit testimony from Tuider that after the police talked to Alonzo they began looking for both Croft and defendant. In addition, the prosecutor asked one final question on this subject: Did all of this occur after the police talked to Alonzo?, but an objection to this question on unspecified grounds was sustained.

The State presents a number of grounds on which the prosecutor’s questions and Tuider’s and Murray’s answers were proper. First, the question to Tuider about whether defendant became a “suspect” after the police talked to Alonzo was invited by defense counsel’s cross-examination of Tuider. (See, e.g., People v. Piscotti (1985), 136 Ill. App. 3d 420 (in closing argument, prosecutor could properly comment on defense theory of case that police fabricated evidence).) Second, the questions and answers allowably explained to the jury the steps taken by the police in investigating Boyd’s murder. (See People v. Johnson (1987), 116 Ill. 2d 13, 24 (defendant’s sixth amendment rights not violated when police officer testifies to steps taken in police investigation, even if narrating sequence of steps shows that police began looking for defendant after talking to codefendant, thus suggesting that codefendant implicated defendant; but defendant’s rights are violated when officer testifies to content of codefendant’s statements).) Third, by detailing the steps of the police investigation the prosecutor refuted the defense’s insinuations throughout the trial that this investigation was hurriedly conducted and defendant’s arrest and indictment were the result of sloppy and inadequate police work.

We find that defendant’s sixth amendment rights were not violated by either the prosecutor’s questions or the witnesses’ answers. The situation that existed here was not at all similar to those in the cases defendant cites (see Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620; People v. Hernandez (1988), 121 Ill. 2d 293; People v. Cruz (1988), 121 Ill. 2d 321; Johnson, 116 Ill. 2d 13). In each of those cases, the actual substance of a codefendant’s statement implicating himself and the defendant was admitted at trial. In stark contrast, neither Tuider nor Murray recounted the content of the statements made by Alonzo Woodard. Tuider said only that after talking to Alonzo the police began looking for defendant. Murray said only that the other witnesses who had been interviewed had said something other than that nothing eventful happened that night until defendant fell asleep at Croft’s house. Th