{ "id": 3636135, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES LOGGINS, Defendant-Appellant", "name_abbreviation": "People v. Loggins", "decision_date": "1985-07-03", "docket_number": "No. 82-1730", "first_page": "684", "last_page": "699", "citations": [ { "type": "official", "cite": "134 Ill. App. 3d 684" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "454 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515941 ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0252-01" ] }, { "cite": "457 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "99 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163788 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/99/0135-01" ] }, { "cite": "447 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111039 ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0001-01" ] }, { "cite": "359 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 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App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562311 ], "weight": 4, "pin_cites": [ { "page": "156-57" }, { "page": "155" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/127/0151-01" ] }, { "cite": "103 S. Ct. 2348", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "103 S. Ct. 2438", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 3, "pin_cites": [ { "page": "2442" }, { "page": "2440" } ], "opinion_index": 1 }, { "cite": "77 L. Ed. 2d 1322", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 4, "pin_cites": [ { "page": "1325" }, { "page": "1324" } ], "opinion_index": 1 }, { "cite": "461 U.S. 961", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337445, 11337158, 11337071, 11337233, 11337310 ], "weight": 4, "pin_cites": [ { "page": "967-68" }, { "page": "964-65" } ], "opinion_index": 1, "case_paths": [ "/us/461/0961-05", "/us/461/0961-02", "/us/461/0961-01", "/us/461/0961-03", "/us/461/0961-04" ] }, { "cite": "436 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1983, "opinion_index": 1 }, { "cite": "106 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3032456 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "1040" }, { "page": "1038" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/106/1034-01" ] }, { "cite": "94 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573065 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/nm/94/0486-01" ] }, { "cite": "387 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "377 Mass. 461", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 334144 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/mass/377/0461-01" ] }, { "cite": "430 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "248" } ], "opinion_index": 1 }, { "cite": "102 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3077974 ], "pin_cites": [ { "page": "671" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/102/0662-01" ] }, { "cite": "148 Cal. Rptr. 890", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 1 }, { "cite": "583 P.2d 748", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "22 Cal. 3d 258", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2282118 ], "opinion_index": 1, "case_paths": [ "/cal-3d/22/0258-01" ] }, { "cite": "380 U.S. 202", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524661 ], "weight": 6, "pin_cites": [ { "page": "223" }, { "page": "774" }, { "page": "837" } ], "opinion_index": 1, "case_paths": [ "/us/380/0202-01" ] }, { "cite": "454 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "229-33" } ], "opinion_index": 1 }, { "cite": "97 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515941 ], "pin_cites": [ { "page": "273-80" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/97/0252-01" ] }, { "cite": "457 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "1204" }, { "page": "1208" } ], "opinion_index": 1 }, { "cite": "99 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163788 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "138" }, { "page": "147-48" }, { "page": "152-54" }, { "page": "139" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/99/0135-01" ] } ], "analysis": { "cardinality": 1407, "char_count": 34297, "ocr_confidence": 0.779, "pagerank": { "raw": 3.4064953022196637e-07, "percentile": 0.8777401694075601 }, "sha256": "14f3e9268ed312b68d02b5feb4e76233f4ef4ad157f49098db4935342f41282c", "simhash": "1:a3782ca66751da01", "word_count": 5670 }, "last_updated": "2023-07-14T19:26:11.266607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES LOGGINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LINN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County, defendant was convicted of armed robbery and sentenced to serve a 15-year term in the Illinois Department of Corrections.\nOn appeal, defendant claims as error the trial court\u2019s denial of his motions (1) to suppress evidence, (2) to compel the State to disclose the identity of a citizen-informant, and (3) for a mistrial based on a discovery violation; he also claims he was denied a fair trial by (4) the admission of certain hearsay evidence, (5) the State\u2019s attempt to shift the burden of proof and its misstatement of the evidence, and (6) the systematic exclusion of blacks from the jury.\nWe affirm the decision of the trial court.\nBackground\nOn May 18, 1981, at approximately 7 p.m., Cynthia Glenn completed her shopping at the Jewel food store in Oak Park, took her groceries, and walked out to the parking lot. As she was placing her groceries in the trunk of her car, she heard a man\u2019s voice yell, \u201cHey.\u201d Glenn turned around to see a man, later identified as defendant Charles Loggins, sitting in the front seat of a car some 3 to 5 feet way, pointing a gun at her.\nDefendant then said to Glenn, \u201cIf you scream, I will blow your head off,\u201d and ordered her to put her groceries in the back seat of his car. He then asked Glenn for her purse and her car keys, all the while looking directly at her. After Glenn gave defendant her keys, defendant told her to walk to her car and act as if she were getting into it. She walked to her car, and defendant drove away.\nGlenn turned around and watched defendant\u2019s car drive off, making a mental note of the license plate number and noticing a line of rust across the back of the car. She then ran into the store and told a man at the main desk that she had been robbed. The man called the police. An officer came in response to the call, interviewed Glenn and another witness, and then drove Glenn home.\nAt approximately 10 p.m. that same evening, Glenn was with friends at a bowling alley in Forest Park when two officers arrived and asked to speak to her. After speaking to them about the crime, Glenn was shown a photo album containing 97 photographs. She was instructed by the officers to go through the album twice and attempt to identify a photo of the man who had robbed her earlier that evening. After looking through the album, Glenn picked out a photo of defendant.\nThe following afternoon, a citizen-informant delivered to the police station some of the proceeds of the crime, which he had found in a trash can behind the building in which defendant lived. The informant told the police the defendant\u2019s address, where he was employed, and the location and description of defendant\u2019s car. An arrest warrant was issued shortly thereafter.\nHaving obtained a warrant, Officers Schoff, Kelly, and Toll proceeded to defendant\u2019s address and knocked on his apartment door. When defendant opened the door and saw the officers with their weapons drawn and badges displayed, he immediately slammed the door. Officer Kelly then heard footsteps and a disturbance inside the apartment and a male voice say, \u201cCome in and get me, fuckers.\u201d The officers shouted through the door to defendant to lie down on the floor, place his hands in front of him, and crawl towards the door. When the officers opened the door, defendant was lying on the living room floor in a prone position.\nOfficers Kelly and Toll restrained defendant, and Kelly told Schoff to get defendant\u2019s weapon and be careful, because he did not know if there was anyone else inside the apartment. Kelly asked defendant if he had a weapon or where the weapon was located, and defendant said, \u201cIt\u2019s under the pillow,\u201d referring to a pillow lying near him on the floor. Kelly lifted up the pillow and found the gun. Kelly announced to the other officers that the gun had been found.\nSchoff stepped over the defendant and pushed open the door to the bedroom, wherein he saw a purse standing on the dresser. Schoff radioed the police communications center and requested a description of the purse that had been taken from Glenn the previous day. Kelly, hearing Schoff\u2019s inquiry, responded with a description of Glenn\u2019s purse. Schoff entered the bedroom and opened the purse, in which he found credit cards and identification belonging to Glenn. Schoff then radioed communications again and asked for the name of the victim of the robbery. Upon learning that Glenn was the victim\u2019s name, Schoff took possession of the purse. Defendant was placed under arrest, and defendant\u2019s vehicle was seized and brought to the police station.\nThe following day, Glenn was called down to the police station to view a six-man lineup. After viewing the men and hearing each man speak the words which had been spoken to her during the robbery, Glenn identified defendant. She was then taken into an office and shown a billfold, which she identified as the one taken from her by defendant. She also identified the gun used in the robbery. Glenn then went out into the parking lot and, out of approximately 100 vehicles, identified defendant\u2019s car as the one used during the commission of the crime. Glenn identified defendant for a third time in court at trial.\nFollowing a jury trial, defendant was convicted of armed robbery and sentenced to serve a 15-year term in the Illinois Department of Corrections.\nHe appeals his conviction.\nOpinion\nI\nDefendant first contends on appeal that the trial court erred by denying his motion to suppress physical evidence, namely, the purse taken from defendant\u2019s apartment during the arrest and the seizure of his car. The State maintains that the seizure of the purse was proper by virtue of defendant\u2019s \u201cinvitation\u201d to the officers to enter his apartment, based on the exigent circumstances surrounding the arrest, and under the \u201cplain view\u201d doctrine. The State justifies the warrantless seizure of defendant\u2019s car on the basis of exigent circumstances, and argues alternatively that any error resulting from the seizure was harmless.\nThe search incident to a lawful arrest exception to the warrant requirement, the permissible scope of which has been delineated as an area within the immediate control of the arrestee, can be expanded when used in conjunction with the plain view doctrine. (People v. Crowder (1981), 99 Ill. App. 3d 500, 425 N.E.2d 994.) A police officer may lawfully seize an item in plain view without a warrant if he views the object from a place where he has a right to be and if the facts and circumstances known to him at the time he acts give rise to a reasonable belief that the item seized constitutes evidence of criminal activity. People v. David (1981), 96 Ill. App. 3d 419, 421 N.E.2d 312.\nIn the instant case, Officer Schoff viewed the subject purse from the living room, in which defendant was lawfully being arrested. Schoff radioed in to obtain a description of the purse taken during the crime and his co-officer, hearing the inquiry, supplied him with a description that matched the purse on the bedroom dresser. Schoff then entered the bedroom and seized the purse. Because he had an initial right to be in the living room, he viewed the purse from the living room, and he had a reasonable belief, based on his co-officer\u2019s description, that the purse constituted evidence of the crime, the seizure of the purse was reasonable.\nWe cannot find, however, that the warrantless seizure of defendant\u2019s automobile was similarly justified. The validity of a warrantless search and seizure must be determined on the basis of whether the State has shown that the exigencies of the situation made that course of conduct imperative. (People v. Grant (1974), 57 Ill. 2d 264, 312 N.E.2d 276.) Here, the State bases its claim of exigent circumstances on the possibility that proceeds of the crime might still have been present in defendant\u2019s car and that the female who shared defendant\u2019s apartment could easily have \u201cspirited\u201d the vehicle and its potentially inculpatory contents from the scene.\nWe find that, in this context, these circumstances fail to constitute the type of exigencies needed to justify the warrantless seizure of defendant\u2019s car. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.\nHowever, in light of the overwhelming evidence of defendant\u2019s guilt, the improperly seized vehicle did not play a material part in the conviction, and the warrantless seizure does not constitute reversible error.\nII\nDefendant next argues on appeal that the trial court erred by denying his motion to compel the State to disclose the identity of the citizen-informant who delivered to the police station some of the proceeds of the crime and supplied the police with defendant\u2019s address, his place of employment, and a description and the location of his car. The State maintains that the trial court properly upheld the State\u2019s \u201cinformer\u2019s privilege\u201d where the evidence adduced at the pretrial hearing showed that the informant did in reality exist, that he was reliable, and that he did not witness or participate in the crime. We find that the trial court properly denied defendant\u2019s pretrial motion.\nSupreme Court Rule 412(j)(ii) sets forth the statutorily created informant\u2019s privilege, providing that an informant\u2019s identity shall not be disclosed where it is a prosecution secret and the failure to disclose will not infringe on the constitutional rights of the accused. (73 Ill. 2d R. 412(j)(ii).) The scope of the government\u2019s privilege is limited by its underlying purpose \u2014 the protection of the public interest in effective law enforcement, and by the fundamental requirements of fairness. (People v. Avery (1978), 61 Ill. App. 3d 327, 377 N.E.2d 1271.) The determination of whether the identity of the informant is a prosecution secret and whether the failure to disclose would infringe on the constitutional rights of the accused must be made by the court. People v. Perez (1974), 25 Ill. App. 3d 371, 323 N.E.2d 399.\nThe test to be applied in eases, such as the instant case, where defendant has made a pretrial motion to disclose the identity of the informant, was set forth by the Illinois Supreme Court in People v. Lewis (1974), 57 Ill. 2d 232, 235, 311 N.E.2d 685, wherein the court stated that police officers need not invariably be required to disclose an informant\u2019s identity in preliminary proceedings if the trial court is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.\nHere, the informant turned over to the police certain proceeds of the crime, told the police where he had retrieved them, gave the police defendant\u2019s address, his place of employment, and a description of defendant\u2019s car. This information was confirmed both by Glenn\u2019s description of defendant\u2019s car and license number and by her report of stolen property. It was further confirmed by the surveillance on defendant\u2019s apartment and the actual location of his car. Moreover, the informant took no part in defendant\u2019s arrest, did not witness or participate in the crime, nor help set up its commission. The trial court made clear its concern for the safety of the informant, especially in light of the fact that he appeared to live in defendant\u2019s neighborhood. In view of the accurate information provided by the informant, his lack of knowledge about the crime, and the threat posed to him by the possibility of disclosure, we find that the trial court\u2019s denial of defendant\u2019s motion to disclose the informant\u2019s identity was a proper exercise of its discretion. People v. Gomez (1978), 67 Ill. App. 3d 266, 384 N.E.2d 845.\nIII\nDefendant next contends on appeal that he was prejudiced by the trial court\u2019s \u201crudely interjecting his personal opinion\u201d that identification was not an issue in the case; and, by the State\u2019s failure to tender to defendant during discovery a statement made by defendant to the arresting officers.\nWe find no merit to the first part of defendant\u2019s contention, finding, from our review of the record, that the objected-to comment made by the trial court had nothing to do with the ultimate issue of identification but rather with the witness\u2019 ability to distinguish between different types of weapons and the relevance of defense counsel\u2019s questioning in that regard. In addition, the trial court never stated that identification of any kind was not an issue, and, once defense counsel responded to the court\u2019s inquiry as to relevance, the court allowed counsel to proceed with his questioning. For this reason, we find that defendant\u2019s characterization of the trial court\u2019s conduct is completely without merit.\nWe next address defendant\u2019s assertion that he was prejudiced by the State\u2019s failure to tender to him a statement made by him to the arresting officers and that the trial court erred by denying his motion for a mistrial based thereon. Defendant specifically refers to the testimony of Officer Kelly, wherein he stated that after defendant had opened his apartment door and slammed it after seeing the officers, he said to them, \u201cCome in and get me, fuckers.\u201d The State maintains that because the statement was not inculpatory, because defendant never showed how it prejudiced his defense, and because defendant never moved to strike, to disregard, or for a continuance, the trial court properly denied defendant\u2019s motion for mistrial. Because the sanction defendant requested was out of proportion to the discovery violation, we find that the trial court\u2019s denial for a mistrial was proper.\nOnce a trial court determines that a discovery violation has occurred, it may impose any sanction which, in its discretion, it deems just under the circumstances. (73 Ill. 2d R. 415(g).) The preferred sanction is a recess or continuance if the granting thereof would be effective to protect the defendant from surprise and prejudice. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) A reviewing court will not reverse the trial court's exercise of its discretion in granting a particular sanction in the absence of a showing of surprise or prejudice to the defendant. People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553.\nHere, the only sanction defendant requested for the State\u2019s discovery violation was an outright mistrial. Defendant neither sought a recess nor a continuance. Furthermore, defendant made no showing as to how he was surprised or prejudiced by the statement. It was therefore a proper exercise of the trial court\u2019s discretion to find that the sanction requested was disproportionate to the discovery violation and to deny defendant\u2019s motion for mistrial.\nIV\nDefendant next asserts as error the trial court\u2019s admission of certain \u201chearsay\u201d evidence. The objected-to evidence concerns testimony by police officers that during the course of their investigation, two eyewitnesses reported defendant\u2019s license plate number and that a computer license check of the reported number revealed that the car was registered to defendant. The State maintains that defendant waived this issue on review by failing to specifically object to such testimony at trial and, alternatively, that the evidence was not admitted for the truth of the matter asserted but rather to explain the actions of the officers during their investigation. We find that the testimony was properly admitted for the nonhearsay purpose of explaining the officer\u2019s actions.\nAn out-of-court statement not offered for the truth of the matter asserted is not hearsay. (People v. Reed (1982), 108 Ill. App. 3d 984, 439 N.E.2d 1277.) A statement used in a criminal prosecution to detail the course of a police investigation, not to prove the truth of the matter asserted, is not hearsay. (People v. Price (1979), 79 Ill. App. 3d 1112, 398 N.E.2d 1158.) A police officer may properly testify to the circumstances of an investigation to explain a witness\u2019 subsequent conduct, such as how that witness came to identify the defendant. People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.\nHere, investigating officers testified that they received defendant\u2019s license plate number from two eyewitnesses and that a computer check of the plate revealed that the car was registered to defendant. As a result of this information, the officers obtained a photograph of defendant and presented a photo album to the victim, who was able to make a positive identification therefrom. This testimony, rather than being offered for the truth of the matter asserted, was clearly admissible to detail the course of the investigation and to explain how the victim made her initial identification of defendant. The evidence was therefore properly admitted.\nV\nThe next claim of error asserted by defendant encompasses eight remarks made during the State\u2019s closing argument. Initially, we note that defendant has failed to raise four of these remarks in his motion for a new trial, thereby depriving the trial court of an opportunity to consider them and waiving consideration of them by this court on appeal. (People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.) The allegedly erroneous remarks of which our consideration has not been waived include (1) the State\u2019s repeated reference to an eyewitness who assisted police during the investigation but who did not testify at trial; (2) the State\u2019s rebuttal to an argument defendant was \u201cprecluded from making\u201d; (3) the State\u2019s implication that defendant had a bad character and prior criminal record; and (4) the cumulative effect of these errors as depriving defendant of a fair trial. We will review these claims in turn.\nThe first objected-to remark involves the State\u2019s reference to an eyewitness who described defendant and provided the officers with the license plate number on defendant\u2019s car. As set forth earlier, this evidence, otherwise objectionable as hearsay, was properly admissible to detail the course of the police investigation. (People v. Price (1979), 79 Ill. App. 3d 1112, 398 N.E.2d 1158.) As such, the State\u2019s comment on this evidence during closing argument was proper. People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.\nThe next prosecutorial remark asserted as error is that portion of the State\u2019s rebuttal argument made in response to matters argued by defendant, against which the State had vigorously protested, and on which defendant was precluded from making further comment. Our review of the record reveals that defendant\u2019s characterization of what transpired at trial is somewhat less than accurate.\nThe matters continually argued by defendant and objected to by the State were those matters already ruled on by the court in defendant\u2019s pretrial motion. Despite the court\u2019s denial of defendant\u2019s motion, he repeatedly attempted to raise the issues he had raised therein, improperly inferring that the State was withholding evidence which the trial court had already ruled need not be disclosed.\nThe State appropriately objected to defendant\u2019s argument, and the trial court instructed defendant to refrain from arguing matters on which it had already ruled. The State, in rebuttal, commented only on that evidence which had been properly admitted and in responsive reply to the improper comments made by defendant. (People v. Sutton (1977), 45 Ill. App. 3d 739, 359 N.E.2d 1132.) Under these circumstances, the State\u2019s argument was a proper comment on the evidence and invited and, as such, did not constitute error.\nThe next remark made by the prosecutor to which defendant objects is the State\u2019s comment on Officer Kelly\u2019s testimony that he \u201chad to go somewhere where they had a picture\u201d of defendant. Kelly\u2019s comment was made in explanation of why defendant\u2019s picture appeared somewhat different from the other pictures presented to the victim for identification. Defendant, however, asserts that the prosecutor\u2019s comment on Kelly\u2019s testimony prejudiced defendant by calling attention to \u201cunrelated arrests or other encounters of defendant with the criminal law.\u201d\nDuring trial, the State fully complied with the trial court\u2019s order not to disclose the origin of the subject photograph. No reference was made to defendant\u2019s prior arrests, convictions, or police department files. Viewing the objected-to remark in light of this compliance, we find that the reference made by Kelly upon which the prosecutor commented was far too vague to be suggestive of unrelated criminal activity by defendant. We therefore find that defendant was not prejudiced by this remark.\nHaving found none of the remarks claimed as error by defendant to be in fact erroneous, we need not address defendant\u2019s argument as to their cumulative impact on his right to a fair trial.\nVI\nAs his last claim of error on appeal, defendant contends that he was denied a fair trial by the systematic exclusion of blacks from the jury by the State\u2019s use of peremptory challenges. The State maintains that the jury was properly selected and that defendant has failed to provide any basis on which to establish the threshold requirement of a pattern of systematic exclusion. We must agree.\nDefendant asks this court to disregard the binding precedent in Illinois which holds that excluding blacks by the use of peremptory challenges is not a violation of equal protection (People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353), and that reversal is not required under the sixth amendment when peremptory challenges are used to exclude black jurors in an individual case. (People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.) Defendant urges this despite his acknowledgment of the \u201ccase by case\u201d standard employed by our supreme court. People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.\nWhile we could in fact follow Illinois precedent and find that defendant\u2019s right to a fair trial had been violated, in order to do so, defendant must make some showing of systematic exclusion.\nRather than offer any tangible evidence to support his assertion, defendant in the instant case asks us to find systematic exclusion of black jurors based on his allusion to the \u201csheer volume of cases raising this issue\u201d in Cook County. We cannot, based on a mere allusion, find evidence of systematic exclusion on a case after case basis, or, for that matter, in this individual case.\nFor all the reasons set forth above, we affirm the decision of the trial court.\nAffirmed.\nJIGANTI, P.J., concurs.", "type": "majority", "author": "JUSTICE LINN" }, { "text": "JUSTICE JOHNSON,\nspecially concurring:\nI take this opportunity to state my views on the issue of prosecutorial misuse of peremptory challenges during the voir dire in a criminal trial to exclude persons from the jury solely on account of their race.\nI. Swain v. Alabama\nIn Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, the United States Supreme Court held that a prosecutor\u2019s use of peremptory challenges to exclude black persons from a jury in a criminal trial solely on account of their race did not deny the defendant equal protection of the laws as guaranteed by the fourteenth amendment to the United States Constitution. The court held, however, that a defendant would prevail on such a claim if he could demonstrate that a prosecutor in a county was systematically excluding persons from juries for racially motivated reasons \u201cin case after case.\u201d (380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) The Illinois Supreme Court has repeatedly declared the principles articulated in Swain to be controlling in Illinois. People v. Payne (1983), 99 Ill. 2d 135, 138, 457 N.E.2d 1202, 1204; People v. Williams (1983), 97 Ill. 2d 252, 273-80, 454 N.E.2d 220, 229-33.\nAlthough Swain is the law in Illinois, I continue to believe that the better rule is found in the California case of People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890. (People v. Lavinder (1981), 102 Ill. App. 3d 662, 671, 430 N.E.2d 243, 248 (Johnson, J., dissenting)). There, the California Supreme Court held that the prosecutor\u2019s use of peremptory challenges to exclude blacks from juries violated a defendant\u2019s right to an impartial jury drawn from a fair cross-section of the community, guaranteed by the California Constitution. (See Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499; State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716.) The third division of this court concurred with the Wheeler-type standard in People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, rev\u2019d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, relying on the impartial-jury guarantee of the sixth amendment to the United States Constitution. The third division held that when it reasonably appeared to a trial court that the State was using its peremptory challenges solely to exclude black jurors because of their race, the burden shifted to the State of demonstrating that the exclusions were for reasons other than race. (People v. Payne (1982), 106 Ill. App. 3d 1034, 1040, 436 N.E.2d 1046.) Relying on its previous decisions, the Illinois Supreme Court rejected this approach and reaffirmed its allegiance to Swain. See People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.\nII. Criticism of Swain\nBoth the legal profession and the general public have criticized Swain v. Alabama because (1) it defeats the sixth amendment goal of a fair jury and (2) it contains a standard that is unfair to defendants and is almost unattainable. Dissenting from a denial of certiorari in a group of cases raising the issue, Justice Thurgood Marshall of the United States Supreme Court stated the following:\n\u201cThe right to a jury drawn from a fair cross section of the community is rendered meaningless if the State is permitted to utilize several peremptory challenges to exclude all Negroes from the jury. *** The desired interaction of a cross section of the community does not take place within the venire; it is only effectuated by the jury that is selected and sworn to try the issues. The systematic exclusion of prospective jurors because of their race is therefore unconstitutional at any stage of the jury selection process.\u201d McCray v. New York (1983), 461 U.S. 961, 967-68, 77 L. Ed. 2d 1322, 1325, 103 S. Ct. 2438, 2442 (Marshall, J., joined by Brennan, J., dissenting).\nMany legal commentators have written scholarly critiques of Swain v. Alabama. (McCray v. New York (1983), 461 U.S. 961, 964-65 n.1, 77 L. Ed. 2d 1322, 1324 n.1, 103 S. Ct. 2348, 2440 n.1.) This pernicious practice is so widespread throughout Illinois and the nation that concerned citizens discuss it publicly. (See People v. Frazier (1984), 127 Ill. App. 3d 151, 160 app. 2, 469 N.E.2d 594, 601 app. 2; Waltz, Now It\u2019s Harder for Lawyers to Pick Biased Jury, Chicago Sun-Times, July 13, 1982, at 30, col. 1.) Five justices of the United States Supreme Court have indicated that such use of a prosecutor\u2019s peremptory challenges is sufficiently serious to merit the court\u2019s review at a later date. (See McCray v. New York (1983), 461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2438 (opinion of Stevens, J., joined by Blackmun and Powell, JJ.; dissenting opinion of Marshall, J., joined by Brennan, J.) Additionally, the United States Court of Appeals for the Second Circuit has become the first Federal appeals court to apply the sixth amendment impartial jury guarantee to the prosecutorial misuse of peremptory challenges for racially motivated reasons. The court recently held that a defendant need demonstrate prosecutorial misuse at his trial only and not in case after case. McCray v. Abrams (2d Cir. 1984), 750 F.2d 1113.\nSwain v. Alabama is criticized intensely because its \u201ccase after case\u201d standard is unfair and, arguably, impossible to meet. Justice Marshall noted the unfairness of Swain when he stated the following:\n\u201cSince every defendant is entitled to equal protection of the laws and should therefore be free from the invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor\u2019s use of peremptory challenges before any defendant can object.\u201d (Emphasis in original.) McCray v. New York (1983), 461 U.S. 961, 964-65, 77 L. Ed. 2d 1322, 1324, 103 S. Ct. 2438, 2440 (Marshall, J., dissenting).\nDissenting from the Illinois Supreme Court\u2019s reversal of the appellate court\u2019s decision in Payne, Justice Seymour Simon noted the unachievable nature of the Swain standard when he stated the following:\n\u201cThe Swain requirement of systematic exclusion of black jurors in case after case, however, presents a nearly insurmountable hurdle for an individual defendant, and I have found only two cases decided since Swain where defendants actually established this systematic exclusion. [Citations.]\nIt is obvious why defendants have established so little misuse of peremptory challenges under the Swain standard. The prosecutors are the only people who know why peremptory challenges are used against black persons, and they are not telling anyone. It seems to me that if this court imposes the Swain requirements on defendants, the only way defendants could get solid evidence on the misuse of peremptory challenges in case after case would be to subpoena assistant State\u2019s Attorneys and even State\u2019s Attorneys to testify at a hearing during voir dire or in a civil class action suit by prospective black jurors or black defendants. Certainly this would provide a spectacle that should be avoided if any alternative is available, and I submit one which this court is inviting by this decision and by its prior decisions in Davis and Williams.\u201d People v. Payne (1983), 99 Ill. 2d 135, 147-48, 457 N.E.2d 1202, 1208 (Simon, J., dissenting).\nDespite the apparent impossibility of meeting the case after case standard, I believe that it has been met in this case. The number of Illinois defendants who claim prosecutorial misuse of peremptory challenges is large and ever-increasing. (People v. Frazier (1984), 127 Ill. App. 3d 151, 156-57, 469 N.E.2d 594, 598-99 (listing 46 cases).) Acknowledging that our supreme court rejected this interpretation of Swain in Payne, I believe that the sheer number of cases that raise the issue demonstrates that prosecutors in Illinois have been purposely and systematically using peremptory challenges to exclude blacks from juries in case after case. People v. Payne (1983), 99 Ill. 2d 135, 152-54 (Simon, J., dissenting).\nIII. The Appearance of Justice\nNow that I have discussed Swain and its Illinois offspring, I turn to the effect of those decisions on our society. This decision and the many others denying defendants\u2019 sixth amendment claims, relying on Swain and its Illinois offspring, destroys the appearance of justice in our courtrooms. A criminal trial is a public event whose significance reaches beyond the truth or falsity of the accusation. A trial includes the ceremonial trappings of history, the appearance of justice, and the participation of citizens in passing judgment. Our entire society, therefore, is represented at a criminal trial. See Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814.\nThe State, through the prosecutor, practices racial discrimination when it uses peremptory challenges to exclude blacks from juries. In light of the public nature of criminal trials, \u201cwe must be ever solicitous that those in attendance witness a system of justice in its truest sense and not a system of de facto racial discrimination.\u201d (People v. Payne (1982), 106 Ill. App. 3d 1034, 1038, 436 N.E.2d 1046, 1049 rev\u2019d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.) Indeed, the practice causes injury to \u201cthe jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.\u201d Ballard v. United States (1946), 329 U.S. 187, 195, 91 L. Ed. 181, 187, 67 S. Ct. 261, 265.\nActions speak louder than words. The fundamental proposition that racial discrimination practiced in Illinois courts is repugnant to the law of Illinois and should be condemned cannot be overstated (see People v. Payne (1983), 99 Ill. 2d 135, 139) (Clark, J., specially concurring). These statements, however well-intentioned, do not remove the appearance of injustice when courts appear to condone racial discrimination through the prosecutor\u2019s use of peremptory challenges. As Chief Justice Robert N.C. Nix of the Pennsylvania Supreme Court asked in his dissenting opinion in Commonwealth v. Martin (1975), 461 Pa. 289, 299, 336 A.2d 290, 295, \u201cIs justice to sit supinely by and be flaunted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy that permits the use of a presumption to hide the existence of an obvious fact?\u201d The judiciary must stop this discrimination in its courts to avoid appearing to be an accomplice to it.\nIV. Conclusion\nIn light of the following analysis, I completely agree with the measures that the third division of this court noted in People v. Frazier (1984), 127 Ill. App. 3d 151, 158 app. 1, 469 N.E.2d 594, 599 app. 1. The assistant State\u2019s Attorney who prosecuted the present case at trial was Mary Ann Callum. Her name is reprinted so that interested persons may study the actions of the office of the State\u2019s Attorney of Cook County according to the case after case standard of Swain. \u201cOf course, [I] pass no judgment and make no inference regarding [her] conduct or motive in the present case or in any other case.\u201d People v. Frazier (1984), 127 Ill. App. 3d 151, 155; People v. Goodum (1984), 127 Ill. App. 3d 350, 356, 468 N.E.2d 1237, 1241.\nInsofar as the majority correctly applied the present law of Illinois to the facts of this case, I concur in the result.", "type": "concurrence", "author": "JUSTICE JOHNSON," } ], "attorneys": [ "Dennis M. Doherty, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Thomas Gearen, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES LOGGINS, Defendant-Appellant.\nFirst District (4th Division)\nNo. 82\u20141730\nOpinion filed July 3, 1985.\n\u2014 Rehearing denied July 15, 1985.\nJOHNSON, J., specially concurring.\nDennis M. Doherty, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Thomas Gearen, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0684-01", "first_page_order": 706, "last_page_order": 721 }