People v. Crowder (161 Ill. App. 3d 1009, 1987)

JUSTICE LORENZ

delivered the opinion of the court:

In a jury trial defendant Thomas Crowder was convicted of murder and sentenced to an extended term of 60 years. On appeal he contends: (1) the prosecution improperly used their peremptory challenges to exclude women from the jury; (2) defendant was denied his right to a speedy trial; (3) defendant was prejudiced when an in camera hearing concerning his possible danger to his wife, a State witness, was held outside of his presence; (4) the trial court erroneously restricted defense cross-examination; (5) admission of evidence of defendant’s arrest for unrelated crimes was unduly prejudicial; (6) improper closing argument denied defendant a fair trial; (7) defendant was denied effective assistance of counsel.

We affirm.

Defendant has not challenged the sufficiency of the evidence of his guilt. Accordingly we will summarize that evidence only to the extent necessary for consideration of the issues raised.

Two of defendant’s alleged accomplices, Earl and Derelon Mc-Dade, testified for the State. Earl, 18 years old at the time of trial, testified that on October 8, 1978, defendant told him that the victim, Tony Ross, had set him up on a “reefer bust” and he was going to pay him back. Earl and Derelon both testified that the following day they and Enzie Williams accompanied defendant when he abducted Ross at gunpoint from a parking lot and drove him to the back lot of a factory in Chicago.

Earl admitted driving defendant’s car for part of the trip and then holding the gun on Ross when defendant took over the driving. At the factory lot defendant, who again had the gun, forced Ross to step down. He then sent Earl and Enzie to park the car. When they returned Ross was on his knees, with injuries to his head. He was begging for his life, saying this was a mistake. Defendant, holding a business-card-size piece of paper, said he knew the victim had done this. He then picked up a green board. Earl turned his head, heard seven or eight cracks, and never looked back at the victim. He and his brother returned to the car.

Derelon, who was 16 years old at the time of the crime, testified that after they arrived at the factory lot and Earl left to park the car, defendant forced Ross to his knees and beat him about his face with the gun. Defendant told Ross he had “messed up” his family and he was going to kill him. When Earl and Enzie returned, defendant asked the three of them what to do with Ross. Derelon said to just beat him, Enzie said to kill him, and Earl said nothing. Defendant, who, Derelon recalled, had earlier said he knew Ross had set him up, picked up a card the size of a business card. He then obtained an ice pick from Enzie and tried to force it into Ross’s chest. Ross resisted, begging for his life, and Derelon never saw it enter Ross. (Earl denied ever seeing an ice pick.) Defendant then dropped the ice pick, picked up a green board, and repeatedly struck Ross on the head with it. Derelon confirmed that his brother was facing in the other direction as this occurred.

After these blows were struck Ross fell to the ground, appearing to Derelon to be dead. On defendant’s instructions Derelon and Earl threw the board away and then went to the car. In 15 minutes Enzie and defendant rejoined them and they all drove away.

Earl admitted that at the parking lot that day he had smoked five or six marijuana cigarettes and had drunk a quart of wine in the half hour before the abduction. However, he stated that although he was “really gone” and was drunk, he had a clear memory of what took place. Earl also admitted that while in jail he had signed a statement saying defendant had nothing to do with the Ross killing. Earl explained that he had not read the statement before signing it. Defendant, who was in jail with him at the time, had prepared it and had told him it was a motion to quash arrest which would free Earl in 120 days. Earl also admitted that he was charged with murder in the case but the State had promised to drop charges if he cooperated. He had been told by his lawyer that cooperation could help him avoid the electric chair.

Derelon admitted that he had been told he could be tried as an adult. After “volunteering” to testify for the State he was transferred to the juvenile authority from an adult facility.

Ross, still alive, was found by the police later that afternoon. A nail-studded green board, identified by Derelon and Earl as resembling the one used by the defendant, was found nearby. The neurological surgeon who treated Ross testified that he remained unconscious until his death on October 20, 1978. The cause of death was severe brain trauma caused by blows which could have been administered by the board found at the scene.

Defendant’s wife Dorothy also testified for the State, relating a series of incriminating statements and actions by the defendant. On October 9 at 11:55 p.m., the night of the incident, she heard defendant tell his nephew, Perry Castleberry, that he did not have to worry about Ross anymore because he had killed him. At their home, Dorothy saw defendant’s clothes in the bathtub with blood on them. Defendant told her he had cut himself working on a car, but she saw no injuries on him. The next morning defendant took the clothes and left with Enzie Williams, who was Dorothy’s brother. Defendant told Enzie he was going to burn them because they were evidence.

On October 15 defendant again told Castleberry he did not have to worry about Ross because he had “iced” him. On the 16th, defendant said if he stayed away for five years the murder charge would be dropped. That same day defendant, Dorothy, their children, Enzie and Earl went to defendant’s brother’s home in Gary. Defendant told En-zie that he had helped defendant with the murder and so was an accomplice.

On October 30 they went to Detroit, where Dorothy rented an apartment. On November 7, 1978, defendant pulled a gun on them, saying they were all in it together and nobody was going anywhere.

Dorothy admitted falsely telling the police that she knew nothing of the incident. According to Dorothy, as late as August 3, 1979 (trial began August 14), she still planned to testify for her husband. The defendant had asked her to lie. However, a week later she decided to testify for the State.

Several other State witnesses provided corroborating testimony. Chicago police officer Glen Godbold testified that on October 5, 1978, he spoke to Tony Ross and gave him a card with his name and number. On October 7 he arrested defendant and several other people for certain misdemeanors. However, those arrests were not based on any conversation with Ross. Sharlene Griffin testified that on the afternoon in question she saw defendant and Enzie Williams approach Ross in the parking lot. Enzie told Ross to come into the alley, where they wanted to talk to him. Defendant, Enzie, Ross, and the McDade brothers then all went into the alley. Griffin recalled that defendant looked angry.

Linda Carter, a former girlfriend of Tony Ross’, testified that on October 8, 1978, defendant told her she would not see him or Ross anymore. Debbie Robinson, who lived with Perry Castleberry, testified that on October 15 she overheard defendant tell him they did not have to worry about Ross “messing” with the family business because he “took care” of Ross.

Defendant presented no witnesses in his own behalf.

Opinion

1

We find no merit to defendant’s contention that he is entitled to a Batson hearing (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712), because of the State’s use of peremptory challenges to exclude women from the jury. As this court recently held in People v. Zayas (1987), 159 Ill. App. 3d 554, a Batson claim requires a showing that a prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. This male defendant lacks standing to challenge the exclusion of women from the jury on this ground. Furthermore, defendant’s reliance on his sixth amendment right to a jury drawn from a representative cross-section of the community is also unavailing. As we also noted in Zayas, the United States Supreme Court has specifically declined to extend the fair cross-section requirement to petit juries. Lockhart v. McCree (1986), 476 U.S. 162, 174, 90 L. Ed. 2d 137, 148, 106 S. Ct. 1758, 1765; Buchanan v. Kentucky (1987), 483 U.S. _, 97 L. Ed. 2d 336, 107 S. Ct. 2906.

2

We also find no merit to defendant’s contention that he was not brought to trial within 120 days as required by the speedy trial act. (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5.) The record establishes that at the hearing on defendant’s motion for discharge defendant withdrew his motion, apparently because he believed the motion would be unsuccessful. Defendant accordingly has waived this issue. (People v. Pearson (1981), 88 Ill. 2d 210, 430 N.E.2d 990.) We would also note that, in any event, our computation establishes that when delays attributable to defendant are excluded he was brought to trial within 98 days, well within the requisite time period.

3

Defendant also contends he was prejudiced because he was barred from certain in camera proceedings concerning his wife’s fear of him and because the contents of those proceedings were not disclosed to him.

Prior to trial a hearing was held on defendant’s motion to suppress certain statements made by him. At that hearing defendant’s counsel asked investigator Gary Hill, one of the arresting officers, whether defendant’s wife was at the police station voluntarily at the time defendant was being questioned. Hill responded that he would rather not answer that question because a question of safety was involved. An in camera proceeding was then held outside the presence of the defendant. In that proceeding the State revealed that defendant’s wife had aided the police in locating the defendant. She had also expressed a fear of defendant to the police. In addition, defendant himself had asked the police who had informed on him.

Defense counsel expressed his intent to continue this line of questioning because it appeared that defendant’s wife had been utilized by the police to obtain statements from him. However, the State then stipulated that it would not utilize these statements in its case in chief. Defense counsel agreed to the court’s suggestion that if the State sought to use those statements as impeachment, in the event defendant testified, a hearing on voluntariness would first be held. Defense counsel also stated that the only reason he had wished to pursue this questioning was in support of the motion to suppress. The court noted that this goal was met when the State agreed not to use the statements. The court then ordered the transcript impounded and instructed defendant’s counsel not to disclose to defendant, without further order of the court, the information that defendant’s wife had aided the police in apprehending him. The court indicated that it took this action because it found there was “some reason to give credence to what the police officer said [sic]." During the hearing the State and defense counsel stated they were presently unable to locate defendant’s wife.

On the record, in defendant’s presence, the State informed the court it would not use defendant’s statements in its case in chief. Defense counsel stated that because his motion to suppress had in effect been sustained he would not pursue it further. Defendant then personally objected to the in camera proceeding and stated that it appeared his wife might be cooperating with the State.

Defendant now contends that these proceedings violated his constitutional rights to appear and defend in person and to confront witnesses. However, the in camera proceeding at issue here did not detrimentally affect the defendant. His counsel obtained the effective suppression of his statements. Although defendant contends that he had been relying on his wife to assist him in his defense, he in fact had testified at the suppression hearing that he was no longer in contact with her and did not know where she was. Defendant also contends that the trial court demonstrated “some amount of predisposition” to assume defendant’s guilt by giving credence to the State’s theory that defendant’s wife feared defendant. Defendant contends that had he been aware of this attitude he would have moved for a substitution of judge for cause. We find this argument to be without merit. The court merely acted to protect a potential witness based upon information presented by the State. That action did not adversely affect defendant in his defense; indeed, it was premised upon a State agreement not to utilize apparently incriminating statements made by the defendant. The cases cited by defendant are inapposite. In People v. Etheridge (1976), 35 Ill. App. 3d 981, 343 N.E.2d 55, the defendant was not present at his sentencing hearing. In People v. Grigsby (1977), 47 Ill. App. 3d 812, 365 N.E.2d 481, defendant was not present at a hearing when testimony was heard concerning a possible conflict of interest by defendant’s counsel. Here, no testimony was heard at the in camera proceeding and defendant was not adversely affected by the outcome of that proceeding. Because defendant has failed to demonstrate any prejudice arising from this procedure we find no basis for reversal of his conviction. People v. Harvey (1981), 95 Ill. App. 3d 992, 420 N.E.2d 645.

4

We next consider defendant’s contention that the trial court erroneously restricted defense cross-examination of certain witnesses. In the first such alleged instance defense counsel was questioning Linda Carter about when she first told police that defendant told her she would not be seeing Ross anymore. Counsel asked Carter if she went to the police. She answered “No, they came to me — .” Her remaining answer was cut off by a successful State objection on relevancy grounds. However, the answer was not stricken, nor was the jury instructed to disregard it. Defendant contends only that he should have been permitted to adduce from the witness the information that the police had sought her out. Clearly this information was brought out and thus we find no prejudice.

In the second instance the defendant asserts that the trial court precluded any questioning of Debbie Robinson (who lived with Perry Castleberry) concerning whether she was aware Castleberry was a suspect in the case. Robinson had testified that she heard defendant say he “took care” of Ross. Defendant contends he was thus precluded from seeking to establish that she had incriminated defendant to protect Castleberry. But the record establishes no such preclusion. The trial court acknowledged that questioning the witness about her state of mind on this issue was relevant and permissible. The court merely found that the question as framed was too broad and called for an answer that could be based on conjecture and speculation. The court clearly indicated that counsel should elicit the underlying facts from which such a conclusion could be drawn. Indeed, defense counsel thereupon did elicit from the witness the information that at the time she told police of the statement she knew Castleberry had been placed in a lineup. However, on redirect the State brought out that the witness also knew Castleberry was not identified in that lineup. Accordingly, we find no error in the trial court’s action.

The final allegation of erroneously restricted cross-examination concerns Derelon McDade. Derelon admitted that he was transferred from Cook County jail to a juvenile facility after agreeing to testify for the State. However, the trial court barred defense counsel from then asking Derelon whether his attorney had explained to him that he was going to “cut a deal.” The court required that counsel first ask this question outside the presence of the jury, presumably as a prelude to asking the question before the jury only if defendant acknowledged the conversation. Defense counsel declined the opportunity. We find that the trial court erred in thus restricting defendant’s constitutional right of cross-examination. It has long been recognized that cross-examination is necessarily exploratory and therefore a cross-examiner is to be given reasonable latitude even though he cannot establish beforehand what facts that examination may adduce. (Alford, v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218; People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92; see People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.) We also find, however, that given the overwhelming evidence of defendant’s guilt in this cause, the error was harmless beyond a reasonable doubt. People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.

5

Defendant also contends that it was prejudicial error for the court to admit evidence that defendant was involved in other crimes. Such evidence is of course admissible to show motive. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104.) In this cause the State’s theory was that defendant killed the victim because he believed that the victim had caused his arrest. In support of this theory the State sought to introduce evidence that defendant had been arrested several days prior to the attack on Ross. The court permitted the State to do this but specifically instructed them to adduce the additional fact that the arrest was for misdemeanors, without revealing that the specific crimes were for unlawful use of weapons and contributing to the delinquency of a minor. At the State’s request a 10-min-ute recess was declared so that the next witness, Officer Godbold, could be so instructed. On direct examination Godbold testified that on October 7 he arrested defendant for a misdemeanor. However, on cross-examination, after defense counsel adduced the information that the arrest was based on a complaint, the following ensued:

“[Defense Counsel]: Who was the signator of the complaint?

A. There were two complaints actually. One was for contributing to the delinquency of a minor. One—

Q. I asked you what the names of the signatory of the complaint was, who signed the complaint.

A. The name on the U.U.W. was—

Q. Who signed the complaint.

[The Court]: The name of the person that signed the complaint.”

Defense counsel then elicited from the witness the fact that a woman had signed the complaints and that defendant’s arrest had nothing to do with information provided by Tony Ross. Clearly, the responses of this officer were in violation of the trial court’s order. But we find no basis for ascribing these answers to prosecutorial misconduct, as suggested by defendant. As we have noted, it was the State that obtained a recess in order to instruct the witness. In any event, defendant failed to object to these answers or to seek any cautionary instructions. Accordingly, we find the issue to have been waived. People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.

6

We find no merit to defendant’s contention that he was denied a fair trial by improper closing argument. Suffice it to say that upon review of all the arguments we have found that the comments at issue were either responsive to argument of defense counsel or constituted fair comment on the evidence.

7

Defendant’s final contention is that he was denied effective assistance of counsel by being forced to accept an attorney with whom he had substantial conflicts. The record establishes that prior to trial defendant declined the trial court’s offer to have substitute counsel appointed. The record also documents the vigorous and able representation provided by trial counsel, representation which was clearly within the range of competent professional assistance. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Therefore we find no merit to the contention.

For the reasons set forth in this opinion we affirm the judgment of the trial court.

Affirmed.

SULLIVAN, P.J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. The constitutions of the United States and the State of Illinois prohibited Assistant State’s Attorneys Jay Magnuson and Thomas O’Donnell from exercising the State’s peremptory challenges to purposefully and systematically exclude women from jury service simply because of their sex.

On September 17, 1787, two hundred years ago last month, the constitution of this nation was drafted. It did not then include well over one-half of the people of the nation. It excluded women, blacks and native Americans from its protections, rights, privileges and guarantees. This year, two hundred years later, the nation celebrates the bicentennial anniversary of that constitution. Today, after two hundred years; today, after a civil war with multitudinous fatalities and injuries; today, after numerous amendments to that constitution; today, after acts of terrorism, lynchings, and atrocities too despicable to relate; today, after infinite human distress and pain; today, after repeated acts of Congress and State legislatures; today, after many court decisions; today, after mass demonstrations and protestations, the struggle yet continues to bring the excluded within the protections, rights and privileges of that document. The most ingenious, but fallacious, concepts conceivable by the minds of men have been concocted to perpetuate their exclusion and to impede their inclusion. Although certainly not original, the prosecutors’ exercise of peremptory challenges in the case at bar to exclude women from jury service solely because of their sex is just another of the many contemptible obstacles on the road to equality for this nation’s majority — women. But even after two hundred years, the faith of the excluded still must not falter. Today, after two hundred years, expressions of abhorrence to sexism (and racism) continue to be uttered. The Chicago Tribune, May 11, 1987, section 1, page 12, editorial voiced its hostility to sexism (and racism) thusly:

“IT’S ALSO THE BICENTENNIAL OF A WRONG

Justice Thurgood Marshall of the U.S. Supreme Court has rescued the bicentennial of the U.S. Constitution from sanctimonious dullness and historical error. In a controversial speech the other day, Justice Marshall said that he did not find ‘the wisdom, foresight and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start ***.’

He was talking about the original Constitution’s acceptance of slavery and refusal to accord women the vote. And he was right. These were deep and abiding flaws in an otherwise remarkable and enlightened piece of work. And they led to grave consequences.

* * *

*** [T]he tolerance of slavery and exclusion of women from political society contradicted the whole philosophical foundation of the Constitution, which had been built on enlightenment ideals of individual freedom, dignity and popular sovereignty.

* * *

And it is a measure of how benighted were the Framers with respect to liberty, dignity and equality of women that the question of female suffrage received no significant debate.

In honoring the creation of the American republic, the document that gave it life and the people who wrote the text, it is not necessary to overlook their failures, which perpetuated untold human suffering, led to the nation’s bloodiest war and left an unconscionable legacy that the country still struggles to overcome. A free people celebrates its history by attempting to grasp it in its fullness, the glory and the flaws.”

The Chicago Defender editorial, Thursday, September 3, 1987, page 25, denounced sexism (and racism) in the following language:

“A cursory review of this great nation of ours shows that in spite of its majesty, it still has not seriously addressed the racism and sexism that daily plague it. *** The corporate boardrooms and executive suites of our country are, for the most part, closed to women and other minorities. These conditions are the result of unwritten laws which persist in getting support from racists and sexists across the land.

Many times, these minorities and women seem to be the target of some purposeful, punitive acts by unseen negative forces at work. *** Therefore, we should not be shocked that women and other minorities have gained little in the years of affirmative action. ***”

The defendant in the case at bar was charged with the commission of and the evidence established that he committed horrible crimes, but the horrendousness of his transgressions is no justification for and does not warrant a relaxation or convolution of constitutional principles and the continued perpetuation of discrimination against the nation’s women — our mothers, grandmothers, daughters, sisters, aunts, cousins, wives and friends. In the case at bar, the prosecutors exercised their peremptory challenges to systematically exclude women from the defendant’s jury simply because of their sex.

The defendant, a 37-year-old black male, was charged with the capital offense of murder, aggravated kidnapping and armed violence of Tony Ross, a 20-year-old black male. Pursuant to the prosecutors’ request, during voir dire examination the jury was qualified under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, to impose the death penalty. The jury venire consisted of 92 persons. Forty-three were excused for various reasons upon preliminary voir dire examination by the trial judge. There remained 27 men and 22 women for further voir dire examination. Because this was a capital case, the State and the defendant were each allowed 20 peremptory challenges. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4(e).) Twelve of the thirteen peremptory challenges exercised by the prosecutors were exercised against female members of the venire. The jury that was selected consisted of 11 men and 1 woman. In selecting the four alternate jurors, the State and the defendant were each entitled to four peremptory challenges. The prosecutors exercised all four of their peremptory challenges against female members of the venire in the selection of the four alternate jurors, who, when finally chosen, were all male. Thus, of the 17 challenges exercised by the prosecutors in selecting the 12 jurors and 4 alternate jurors, 16 challenges were exercised against females, and of the 12 jurors and 4 alternate jurors, only one was a female. The defendant contends that this lone female on his jury was merely a token; that he was tried and convicted by an overwhelmingly male-dominated death-qualified jury.

The defendant objected to the State’s exclusion of females from his jury. He stated:

“And I want also to object to the fact that the assistant State’s Attorney here during the course of picking the jury systematically eliminated every young women [sic] and in general every black women [sic], young black women, from the jury.”

The prosecutors did not respond to the defendant’s objection, nor did the trial court.

The defendant contends that the prosecutors’ exercise of peremptory challenges to intentionally, purposefully and systematically exclude females from his jury simply because of their sex violated his rights to an impartial jury from a fair representative cross-section of the community and to the equal protection of the laws guaranteed by the sixth and fourteenth amendments of the Constitution of the United States and article I, sections 2 and 8, of the Constitution of the State of Illinois.

Section 2 of article I of the Illinois Constitution, provides: “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Section 8 provides: “In all criminal prosecutions, the accused shall have the right to *** a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” The sixth amendment to the Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ***.” It is provided in the fourteenth amendment to the United States Constitution: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The supreme court of Illinois has not upheld a prosecutor’s use of peremptory challenges to exclude women from jury service simply because of their sex against due process, equal protection or trial by jury constitutional claims, nor has the Supreme Court of the United States. A sequential analysis and review of court decisions on the constitutional validity of a prosecutor’s use of peremptory challenges and the prosecutor’s systematic exclusion of identifiable groups from jury service by varying devices are illuminating and informative.

The following quote from Glasser v. United States (1942), 315 U.S. 60, 84, 86 L. Ed. 680, 706-07, 62 S. Ct. 457, 471, is instructive: “Since it was first recognized in Magna Carta, trial by jury has been a prized shield against oppression, but while proclaiming trial by jury as ‘the glory of the English law,’ Blackstone was careful to note that it was but a ‘privilege.’ Commentaries, bk. 3, p. 379. Our Constitution transforms that privilege into a right in criminal proceedings in a federal court. This was recognized by Justice Story: ‘When our more immediate ancestors removed to America, they brought this great privilege (trial by jury in criminal cases) with them, as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our state constitutions as a fundamental right, and the Constitution of the United States * * * y yy

In Smith v. Texas (1940), 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164, the black defendant was convicted of rape on an indictment returned by a grand jury from which blacks had been intentionally and systematically excluded because of their race. The defendant contended that the indictment was therefore obtained in violation of the fourteenth amendment: “No State shall *** deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const., amend. XIV.) The Supreme Court agreed, reversed and held, “It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service or otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government. *** The Fourteenth Amendment requires that equal protection to all must be given — not merely promised.” (Emphasis added.) 311 U.S. 128, 130, 85 L. Ed. 84, 86, 61 S. Ct. 164, 165.

In Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, although the jury was composed of six men and six women, the defendants contended that they were denied trial by an impartial jury guaranteed by the sixth amendment because only women who were members of the Illinois League of Women Voters were included in the jury panel from which the jury was selected and that women who were not members of the league “but otherwise qualified” were systematically excluded. A unanimous Supreme Court held:

“Lest the right of trial by jury be nullified by the improper constitution of juries, the notion of what a proper jury is has become inextricably intertwined with the idea of a jury trial. * * *

* * * Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government. For ‘It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.’ Smith v. Texas [1940], 311 U.S. 128, 130, 85 L. Ed. 84, 86, 61 S. Ct. 164, 165.

*** [T]he proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of the community,’ and not the organ of any special group or class. *** [T]he officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties.” (Emphasis added.) 315 U.S. 60, 85-86, 86 L. Ed. 680, 707, 62 S. Ct. 457, 471-72.

The Supreme Court concluded in Glasser that if the defendants had established in the trial court that women who were not members of the Illinois League of Women Voters were excluded from jury service, as alleged in Glasser’s affidavit, it would have been compelled to set aside the trial court’s denial of the defendants’ motion for a new trial and grant a new trial, but that the defendant’s failure to prove this contention was fatal. 315 U.S. 60, 87, 86 L. Ed. 680, 708, 62 S. Ct. 457, 472.

Although it is a civil case, the following language of the Supreme Court in Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 220, 90 L. Ed. 1181, 1184-85, 66 S. Ct. 984, 985-86, where all persons who worked for a daily wage were excluded from the jury, is also appropriate: “The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. [Citations.] This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and dis-criminations which are abhorrent to the democratic ideals of trial by jury.” (Emphasis added.)

In Ballard v. United States (1946), 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261, women were systematically excluded from the panel of grand and petit jurors. An indictment was returned. The defendant’s motion to quash the indictment and his challenge to the array of the petit jurors based on the exclusion of women from the panel were denied. Congress had provided in the Judicial Code that jurors in Federal court have the same qualifications as those of the highest court of law in the State. The Supreme Court pointed out that “[t]hese provisions reflect a design to make the jury ‘a cross-section of the community’ and truly representative of it,” and, “[t]he system of jury selection which Congress had adopted contemplated, therefore, that juries in the federal courts sitting in such States would be representative of both sexes. If women are excluded, only half of the available population is drawn upon for jury service.” 329 U.S. 187, 191-92, 91 L. Ed. 181,184-85, 67 S. Ct. 261, 263.

In holding that the indictment must be dismissed, the Supreme Court in Ballard relied on Thiel and stated:

“We conclude that the purposeful and systematic exclusion of women from the panel in this case was a departure from the scheme of jury selection which Congress adopted and that, as in the Thiel case, we should exercise our power of supervision over the administration of justice in the federal courts [citation] to correct an error which permeated this proceeding.

*** Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel!” (Emphasis added.) 329 U.S. 187, 193, 91 L. Ed. 181, 185-86, 67 S. Ct. 261, 264.

The following language in Ballard is also an appropriate directive to the case at bar: “[T]he exclusion of women from jury panels may at times be highly prejudicial to the defendants. But reversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas [1940], 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164, or an economic or social class, Thiel v. Southern Pacific Co. [1945], 328 U.S. 217, 90 L. Ed. 1181, 66 S. Ct. 984, 166 A.L.R. 1412, supra, deprives the jury system of the broad base it was designed by Congress to have in our democratic society. *** As well stated in United States v. Roeming [N.D. Iowa 1943], 52 E Supp. 857, 862, ‘Such action is operative to destroy the basic democracy and classlessness of jury personnel.’ It ‘does not accord to the defendant the type of jury to which the law entitles him. ***’ [Citation.] The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflectéd in the processes of our courts.” (Emphasis added.) 329 U.S. 187, 195, 91 L. Ed. 181, 186-87, 67 S. Ct. 261, 265.

The 19-year-old black defendant in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, relied on his fourteenth amendment constitutional right to the equal protection, of the laws in condemning the all white jury which convicted him of rape of a 17-year-old white girl and sentenced him to death. Of the eight blacks who were on the jury venire in Swain, two were exempt from jury service and the prosecutor excused the remaining six by peremptory challenges. The Supreme Court held that the prosecutor’s excusal of the blacks from the jury by peremptory challenges in a single case did not constitute a denial of equal protection of the laws under the fourteenth amendment. The Supreme Court further held that to sustain an allegation of a fourteenth amendment equal protection violation, a defendant must establish that the prosecutor systematically and purposefully excluded blacks from the juries because of their race by the exercise of peremptory challenges repeatedly in a series of cases over an extended period. The Supreme Court concluded that because the defendant had not established this burden no constitutional violation occurred and affirmed the defendant’s conviction.

Justice Goldberg, with whom Chief Justice Warren and Justice Douglas joined, dissented in Swain and stated: “[T]he court today *** creates additional barriers to the elimination of jury discrimination practices which have operated in many communities to nullify the command of the Equal Protection Clause.” (380 U.S. 202, 231, 13 L. Ed. 2d 759, 779, 85 S. Ct. 824, 842.) In further urging that Swain was wrongly decided, Justice Goldberg additionally stated: “[N]o good reason exists to fashion a new rule of burden of proof, which will make it more difficult to put an end to discriminatory selection of juries on racial grounds and will thereby impair the constitutional promise of ‘Equal Protection of the Laws’ ***. *** [T]he court today allies itself with those ‘that keep the word of promise to our ear and break it to our hope.’ ” (380 U.S. 202, 241-42, 13 L. Ed. 2d 759, 785, 85 S. Ct. 824, 847.) Justice Goldberg additionally stated: “The Court *** imposes substantial additional burdens upon Negro defendants such as petitioner, because of its view of the importance of retaining inviolate the right of the State to use peremptory challenges. I believe, however, that the preference granted by the Court to the State’s use of the peremptory challenge is both unwarranted and unnecessary.” (380 U.S. 202, 241, 13 L. Ed. 2d 759, 785, 85 S. Ct. 824, 847.) Expanding on his condemnation of the majority’s holding in Swain, Justice Goldberg insisted that “where systematic exclusion has been shown,” the State should be required “to justify its use of peremptories or to negative the State’s involvement in discriminatory jury selection.” 380 U.S. 202, 245, 13 L. Ed. 2d 759, 787, 85 S. Ct. 824, 849.

The injustice of Swain remained intact for 21 years and it is impossible to calculate the immeasurable racial injustices perpetuated under its authority during those years.

Three years after Swain, the Supreme Court in Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, decided that the provision of the sixth amendment to the Constitution of the United States that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed” (U.S. Const., amend. VI), was applicable to and binding upon the States by the due process clause of the fourteenth amendment, which provides, “[N]or shall any State deprive any person of life, liberty, or property without due process of law ***” (U.S. Const., amend. XIV).

Four years after Duncan and seven years after Swain, the Supreme Court decided Peters v. Kiff (1972), 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163. In Peters, blacks were systematically excluded from the grand jury that indicted the defendant and from the petit jury that convicted him of burglary. The State contended in Peters that because the defendant was white and not black he had not suffered any unconstitutional discrimination. The court rejected this contention, stating: “[WJhen a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim,” and “whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.” (Emphasis added.) 407 U.S. 493, 498, 504, 33 L. Ed. 2d 83, 91, 95, 92 S. Ct. 2163, 2166, 2169.

The following Supreme Court language in Peters is also instructive in the case at bar:

“The exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of related constitutional values.

In Strauder v. West Virginia, 100 U.S. 303, 308-09, 25 L. Ed. 664, 665, 666 (1880), this Court considered the question from the point of view of the Negro defendant’s right to equal protection of the laws. ***

But even in 1880 the Court recognized that other constitutional values were implicated. In Strauder, the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the ‘privilege of participating equally *** in the administration of justice,’ 100 U.S., at 308, 25 L. Ed. at 666, and it stigmatizes the whole class, even those who do not wish to participate, by declaring them unfit for jury service and thereby putting a ‘brand upon them, affixed by law, an assertion of their inferiority. ’ [Citation.] ***

Moreover, the Court has also recognized that the exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross-section of the community. In Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970), we sought to delineate some of the essential features of the jury that is [s-ic] guaranteed, in certain circumstances, by the Sixth Amendment. We concluded that it comprehends, inter alia, ‘a fair possibility for obtaining a representative cross-section of the community.’ 399 U.S., at 100, 26 L. Ed. 2d, at 460. Thus if the Sixth Amendment were applicable here, and petitioner were challenging a post-Duncan petit jury, he would clearly have standing to challenge the systematic exclusion of any identifiable group from jury service.” (Emphasis added.) 407 U.S. 493, 498-500, 33 L. Ed. 2d 83, 91-92, 92 S. Ct. 2163, 2166-67.

In disapproving the systematic exclusion of an identifiable class of citizens from jury service, the following language of the Supreme Court in Peters is applicable to the systematic exclusion of women from the jury in the case at bar: “But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. *** Moreover, we are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Emphasis added.) 407 U.S. 493, 503-04, 33 L. Ed. 2d 83, 94, 92 S. Ct. 2163, 2169.

Following Peters, the United States Supreme Court decided Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, which involved the systematic exclusion from jury service of a class of citizens who comprised a substantial and identifiable segment of the community — women. In Taylor, the defendant, a male, was charged with aggravated kidnapping. The Louisiana Constitution and a provision of the Louisiana Code provided that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The defendant filed a pretrial motion to quash the petit jury venire on the ground that the Louisiana Constitution and Code systematically excluded women from the venire and that the defendant was therefore deprived of his sixth amendment constitutional right to a trial by a jury composed of a representative segment of the community. The defendant’s motion to quash the venire was denied. There were no females on the venire and the defendant was found guilty and sentenced to death by an all male jury. The Supreme Court stated that the issue before it was “whether a jury-selection system which operates to exclude from jury service an identifiable class of citizens constituting 53% of the eligible jurors in the community comports with the Sixth and Fourteenth Amendments.” 419 U.S. 522, 525-26, 42 L. Ed. 2d 690, 695, 95 S. Ct. 692, 695.

The State’s initial contention in Taylor before the Supreme Court was that the male defendant, Taylor, had no standing to object to the exclusion of women from his jury, which was analogous to the State’s contention that the white defendant lacked standing to object to the exclusion of blacks in Peters. The Supreme Court in Taylor responded, as it similarly responded in Peters: “Taylor’s claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. In Peters v. Kiff, 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972), the defendant, a white man, challenged his conviction on the ground that Negroes had been systematically excluded from jury service. Six Members of the Court agreed that petitioner was entitled to present the issue and concluded that he had been deprived of his federal rights. Taylor, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.” 419 U.S. 522, 526, 42 L. Ed. 2d 690, 695-96, 95 S. Ct. 692, 696.

After holding that Taylor had standing to challenge the exclusion of females from his jury, the Supreme Court then reviewed its decisions on the sixth amendment right to a jury from a cross-section of the community. The Supreme Court pointed out that Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, held that where a defendant is charged with the commission of a Federal offense, under the sixth amendment the jury must be a body truly representative of the community and not the organ of any special group or class. The Supreme Court in Taylor further pointed out that because the defendant in Ballard v. United States (1946), 329 U.S. 187, 91 L. Ed. 2d 181, 67 S. Ct. 261, was convicted by a jury from which women had been excluded and because the jury in Ballard should have been a cross-section of the community, the Supreme Court exercised its supervisory authority and reversed Ballard’s conviction. The Supreme Court in Taylor reiterated that “[t]he unmistakable import of this Court’s opinions *** is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” (Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) The court further stated in Taylor:

“[T]he requirement of a jury’s being chosen from a fair cross section of the community is fundamental to the American system of justice. ***

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment ***. The purpose of a jury is *** to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. [Citation.] This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. *** Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. ‘Trial by jury presupposes a jury drawn from a pool broadly representative of the community *** as assurance of a diffused impartiality ***.’ ” 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 697-98.

After holding that the sixth amendment right to a jury trial required that the jury venire be chosen from a cross-section of the community, the Supreme Court then held that women were included in that cross-section and that to systematically exclude them from jury service violated the sixth amendment. The court expounded in Taylor:

“We are also persuaded that the fair-cross-section requirement is violated by the systematic exclusion of women ***. *** [I]f they are systematically eliminated from jury panels, the Sixth Amendment’s fair-cross-section requirement cannot be satisfied. *** If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. ***

* * * [U]ntil today no case had squarely held that the exclusion of women from jury venires deprived a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community.” 419 U.S. 522, 531-36, 42 L. Ed. 2d 690, 698-701, 95 S. Ct. 692, 698-700.

In the case at bar, the prosecutors’ exercise of 16 of 17 peremptory challenges against women in the jury selection process constituted the systematic exclusion of women from the jury. Although there remained on the defendant’s jury one woman, whom the defendant labeled a token, one woman on the jury did not constitute a reasonably fair cross-section of the community. The jury in the case at bar was almost totally male and it constituted almost total exclusion of women. The prosecutors systematically excluded a distinctive group in the community and the jury thereby failed to be reasonably representative thereof. The Supreme Court in Taylor addressed the jury, from which there had been almost total exclusion of women. The Supreme Court stated:

“Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemption based solely on sex if the consequence is that criminal jury venires are almost totally male. *** If at one time it could be held that Sixth Amendment juries must be drawn from a fair cross section of the community but that this requirement permitted the almost total exclusion of women, this is not the case today.” (Emphasis added.) 419 U.S. 522, 537, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701.

Although the Supreme Court stated in Taylor that it would not impose a requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population, the Supreme Court concluded, however, that:

“[T]he jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” 419 U.S. 522, 538, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.

In Taylor, women were systematically excluded from the jury venire by a provision of the Louisiana Constitution and Code which ultimately excluded them from the petit jury actually chosen, whereas in the case at bar, the women were systematically excluded from the petit jury actually chosen by the prosecutor’s systematic exercise of peremptory challenges against them.

In Taylor, the provision that a woman could not serve on a jury unless she filed a written declaration of her willingness to serve was invalidated. In Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, the provision that a woman would be excused from jury service upon her written election not to serve was challenged. Duren’s jury was selected from a 53-person panel on which there were five women. The 12 male jurors convicted Duren of murder and robbery. At the threshold of the Duren opinion, the Supreme Court stated: “In Taylor v. Louisiana (1975), 419 U.S. 522, [42 L. Ed. 2d 690, 95 S. Ct. 692,] this Court held that systematic exclusion of women during the jury-selection process, resulting in jury pools not ‘reasonably representative’ of the community, denies a criminal defendant his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross section of the community” and “[a] criminal defendant has standing to challenge exclusion resulting in a violation of the fair-cross-section requirement, whether or not he is a member of the excluded class.” (Emphasis added.) (439 U.S. 357, 358-59, 359 n.1, 58 L. Ed. 2d 579, 583, 583 n.1, 99 S. Ct. 664, 666, 666 n.1.) In invalidating the aforementioned provision which excluded women from jury service and in reversing the conviction in Duren, the Supreme Court stated: “Taylor without any doubt established that women ‘are sufficiently numerous and distinct from men’ so that ‘if they are systematically eliminated from jury panels, the Sixth Amendment’s fair-cross-section requirement cannot be satisfied.’ ” 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668.

The Supreme Court further stated in Duren: “We stress, however, that the constitutional guarantee to a jury drawn from a fair cross section of the community requires that States exercise proper caution in exempting broad categories of persons from jury service. *** [A]ny category expressly limited to a group in the community of sufficient magnitude and distinctiveness so as to be within the fair-cross-section requirement — such as women — runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement." (Emphasis added.) 439 U.S. 357, 370, 58 L. Ed. 2d 579, 590-91, 99 S. Ct. 664, 671.

In the case at bar, there is no reason discernible in the record for the prosecutor’s systematic and purposeful exclusion of the female jurors. But, as the Supreme Court aptly stated in Taylor v. Louisiana (1975), 419 U.S. 522, 537, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701, and repeated in Duren: “If it was ever the case that women were un qualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed.” (Emphasis added.) Duren v. Missouri (1979), 439 U.S. 357, 369-70, 58 L. Ed. 2d 579, 590, 99 S. Ct. 664, 671.

The State simply argues in the case before us that the prosecutors’ systematic and purposeful exclusion of women from jury service by exercise of peremptory challenges was permitted by People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, cert. denied (1984), 469 U.S. 1028, 83 L. Ed. 2d 372, 105 S. Ct. 447, People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364, and Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. The State contends that exclusion of women from the jury by the prosecutor’s exercise of peremptory challenges in this single case did not constitute a denial of equal protection of the law under the fourteenth amendment and that the defendant must establish that the prosecutor systematically and purposefully excluded women from juries because of their sex by the exercise of peremptory challenges in a series of cases over an extended period of time. The State argues that because the defendant did not sustain this burden in the case at bar no constitutional violation occurred. The State further urges that the sixth amendment requirement that the jury be chosen from a fair cross-section of the community applied only to the jury venire and was inapplicable to the petit jury actually chosen.

In the spring of 1982, this court decided People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, in a scholarly opinion authored by Justice Dom Rizzi on behalf of a unanimous court. In Payne, the defendant contended that he was denied the type of fair trial guaranteed under the sixth amendment of the United States Constitution because the prosecutor on voir dire examination of the jurors exercised his peremptory challenges to systematically exclude blacks from the petit jury simply because they were black. In Payne, seven black