{ "id": 5262481, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY FINLEY, Defendant-Appellant", "name_abbreviation": "People v. Finley", "decision_date": "1991-11-26", "docket_number": "No. 1\u201489\u20142215", "first_page": "571", "last_page": "585", "citations": [ { "type": "official", "cite": "222 Ill. App. 3d 571" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "121 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201362 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0036-01" ] }, { "cite": "157 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3542960 ], "year": 1987, "pin_cites": [ { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0835-01" ] }, { "cite": "155 Ill. App. 3d 650", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464787 ], "pin_cites": [ { "page": "661-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0650-01" ] }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "weight": 2, "pin_cites": [ { "page": "187" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] }, { "cite": "152 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574466 ], "pin_cites": [ { "page": "987" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0971-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 3, "pin_cites": [ { "page": "428" }, { "page": "854" }, { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "111 S. Ct. 2792", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "115 L. Ed. 2d 966", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "501 U.S. 1202", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1107842, 1107848, 1107951, 1108273, 1108210, 1108147, 1108019, 1108285 ], "opinion_index": 0, "case_paths": [ "/us/501/1202-07", "/us/501/1202-04", "/us/501/1202-01", "/us/501/1202-03", "/us/501/1202-06", "/us/501/1202-08", "/us/501/1202-05", "/us/501/1202-02" ] }, { "cite": "137 Ill. 2d 430", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251613 ], "year": 1991, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0430-01" ] }, { "cite": "129 Ill. 2d 123", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567019 ], "weight": 3, "pin_cites": [ { "page": "174-75" }, { "page": "180" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0123-01" ] }, { "cite": "218 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499577 ], "pin_cites": [ { "page": "979" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0967-01" ] }, { "cite": "500 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223686 ], "weight": 8, "pin_cites": [ { "page": "359" }, { "page": "405" }, { "page": "1866" }, { "page": "359" }, { "page": "405" }, { "page": "1866" }, { "page": "365" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 6, "pin_cites": [ { "page": "89" }, { "page": "83" }, { "page": "1719" }, { "page": "100" }, { "page": "90" }, { "page": "1725" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "189 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2678599 ], "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0601-01" ] }, { "cite": "190 Ill. App. 3d 207", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2519370 ], "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0207-01" ] }, { "cite": "159 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3611060 ], "weight": 5, "pin_cites": [ { "page": "619-20" }, { "page": "615" }, { "page": "619-20" }, { "page": "620" }, { "page": "619-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0612-01" ] }, { "cite": "16 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2516096 ], "year": 1987, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0394-01" ] }, { "cite": "197 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482276 ], "weight": 2, "pin_cites": [ { "page": "879-80" }, { "page": "879-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0866-01" ] }, { "cite": "155 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464631 ], "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0641-01" ] }, { "cite": "127 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562211 ], "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0784-01" ] } ], "analysis": { "cardinality": 1247, "char_count": 33593, "ocr_confidence": 0.751, "pagerank": { "raw": 1.2177843586961213e-07, "percentile": 0.5975118626607189 }, "sha256": "8aa562334df3e2a2c5126a6384d3277f9809c62e4e974bef53df2d5a76cfb986", "simhash": "1:6bf9e5961686a5d7", "word_count": 5563 }, "last_updated": "2023-07-14T18:31:20.627609+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. LEROY FINLEY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SCARIANO\ndelivered the opinion of the court:\nLeroy Finley appeals from his conviction by a jury of the armed robbery of Kevin Anderson, claiming that he was denied a fair trial because of statements made by the prosecution and certain testimony that the State\u2019s Attorney\u2019s office had approved the case against him; that the State had engaged in racial discrimination in exercising its peremptory challenges during jury selection; and that the court improperly refused to appoint independent counsel to represent him in his post-trial motion, in which he charged his trial counsel with ineffective assistance. Finley seeks reversal of his conviction with a remand for a new trial, reversal with a remand for a hearing on his racial-discrimination claim or reversal with a remand for a hearing, while represented by independent counsel, on his claim of ineffective trial counsel.\nDuring voir dire, the State exercised peremptory challenges to exclude veniremembers Kevin English, SanFeur Martin and Vincent Williams. Finley moved for a mistrial, \u201cbased upon the State using all their challenges against black people, systematically excluding every black. All of these people are employed, just like the other whites they did not exclude ***.\u201d The court noted that after the State\u2019s challenges, the jury consisted of \u201cfour black males, five white males, two white females, and one male of Indian descent, Middle East, I think.\u201d Finley renewed his objection, citing the State\u2019s use of all three of its challenges against black veniremembers.\nThe State responded by pointing out that it still had \u201cfour remaining challenges, and there are four blacks remaining on the jury.\u201d The prosecutor then explained why he had excluded the three black veniremembers, after which the trial judge stated:\n\u201cI do not believe that the defendant has made a prima facie case. The state does have four remaining challenges. If there was systematic exclusion of black people, the State had four remaining challenges they could have challenged the other four remaining jurors, which constitute twenty-five percent of the jury, which fairly represents the community as a whole, the black population constituting twenty to twenty-five percent of the county\u2019s population.\nLastly, even though unnecessary, the State has in fact set forth its reasoning for the * * * challenge to these jurors ***.\u201d\nThe court then discussed the State\u2019s proffered reasons for its exclusion of the three veniremembers, and finding that the reasons were sufficient to justify the challenges, denied Finley\u2019s motion.\nAnderson testified at trial that he was working at the Little Miss Muffet \u201call-girl review\u201d or \u201cstrip joint\u201d at about 2:20 p.m. on September 11, 1988, when Finley and another man entered the establishment. Finley asked about the cost of watching the strip show, and when Anderson responded, Finley \u201cpulled out two guns and said \u2018put your hands on the counter.\u2019 \u201d He ordered Anderson not to move his hands, came around the counter behind which Anderson was standing and asked him \u201cwhere the money was.\u201d Anderson replied that the money was \u201cunderneath the counter *** on the shelf.\u201d Finley took the money, approximately $120, and also took approximately $30 from Anderson\u2019s wallet. During the episode, Finley\u2019s companion also held a gun.\nFinley proceeded to the back of the store, but Anderson could not determine what he did there; the other man continued to cover Anderson with his gun. When Finley returned about a minute later, his partner gave Finley some handcuffs and told him to cuff Anderson to a chair. Finley complied. He then \u201crousted\u201d two customers from the back of the store. One man, who was \u201csort of crippled[,]\u201d was \u201cset *** down. They didn\u2019t do anything at all to him. *** [T]he other guy they laid on the floor and took his money.\u201d The two assailants then left.\nThe State and Finley later stipulated that during the preliminary hearing, Anderson testified that Finley \u201c[cjame back out and rousted a couple of customers; emptied out the money from their pockets and then they left.\u201d\nWhen the police arrived on the scene, Anderson described his assailants:\n\u201cOne was about 220 pounds, six-two, and he had baggie shorts on. The other one had a blue gangster hat and he was about 150,160 pounds, five-eleven.\n* * *\n*** The bigger one had a mustache and a grizzly beard.\u201d\nOn September 21, 1988, Anderson identified Finley in a police lineup. He also testified that on September 25, 1988, he received a phone call at the Little Miss Muffet from one who identified himself as and who sounded like Finley. The caller offered Anderson \u201ca thousand dollars not to go to court. He said he would have $500 there today and I told him I\u2019d think about it.\u201d Anderson then called Chicago police detective Steven Glynn and related the occurrence to him.\nRobert J. Peterson, a patrol officer for the Chicago police department, testified that at about 2:30 p.m. on September 11, 1988, he was dispatched to the Little Miss Muffet to investigate a report of a robbery and of a victim being restrained by handcuffs. When he arrived at the scene, he saw that Anderson\u2019s right hand was cuffed to a chair. Anderson gave a description of his two assailants similar to the one he gave at trial.\nArthur Buckley, Chicago police officer, also responded to the call at the Little Miss Muffet. While he was speaking with Anderson about the incident, he found a small folded piece of yellow paper on the floor, and, unfolding it, he saw that it was a traffic citation made out to Finley. Without showing the paper to Anderson, he asked Anderson to describe his assailants; Anderson replied with essentially the same description as that given to Peterson. The citation described Finley as 6 feet 3 inches tall and weighing 182 lbs.\nBrian Regan, a Chicago police detective, testified that after searching for Finley at various locations on September 13, 1988, Finley phoned him and asked why Regan was looking for him. He told Regan that he would come to his office the next day, but failed to appear. Regan showed Anderson a group of photographs on September 14, 1988, from which Anderson identified a picture of Finley as that of one of his assailants; he repeated this identification the following day.\nHerman Kluth, a fingerprint examiner for the Chicago police department, testified that the only fingerprint taken from the crime scene was lifted from the handcuffs, but that it was not suitable for identification.\nSteven Glynn, a Chicago police officer, testified that on September 21, 1988, Anderson identified Finley in a police lineup. After the lineup, Glynn interrogated Finley, who maintained that he had never been to the Little Miss Muffet and that he did not commit the robbery. When asked \u201cHow his traffic ticket might have ended up there,\u201d Finley replied \u201cthat he didn\u2019t know *** how it got there.\u201d\nGlynn recalled that Anderson had called to inform him that a man sounding similar to and identifying himself as Finley had offered $1,000 to him for not coming into court. Glynn did not remember Anderson telling him that Finley had said he would have $500 for Anderson that day. The State and Finley later stipulated that pay phones were not accessible to prisoners at the Cook County jail, in which Finley was incarcerated, but that inmates may make third-party calls.\nFinley testified that at the time of the incident he was married, was working for a messenger service and that he had been convicted in 1978 for unlawful use of a weapon, for robbery in 1981 and for theft in 1987. When asked on direct examination, \u201cAnd directing your attention to September 11, 1988, around two o\u2019clock in the afternoon, did you have the occasion to go anywhere?\u201d he responded that he had gone to the Little Miss Muffet. Six questions later, however, in response to the question, \u201cAnd about what time did you arrive at the Little Miss Muffet ***?\u201d he replied, \u201cAbout 12:40.\u201d\nFinley stated that he had gone to the establishment intending to hire a prostitute, which he had done there before. Upon his arrival, he told Anderson, who was standing behind a glass counter containing various items including handcuffs and other items, that he \u201cwanted a girl.\u201d He pulled out $45, which he gave to Anderson, but Anderson told him that the services of a prostitute would cost him $75.\nFinley told Anderson that he \u201calways pa[id] $45.\u201d Anderson retorted, \u201c[I]f you want a cheap *** whore, go on Madison and get one, stupid-ass nigger.\u201d Finley then \u201ccalled him a name and told him [that he would] beat his *** ass.\u201d Anderson then said to Finley, \u201cYou better leave before I call the police.\u201d Finley then left. He testified that he did not rob Anderson, did not possess a gun at the time he entered the Little Miss Muffet, and that he was not accompanied by any other person.\nAfter learning from his mother, who had been visited by the police, that they were looking for him, Finley called Glynn and was told by him that \u201che wanted to discuss an incident, a battery.\u201d Although Finley told Glynn that he would come in the next day, he failed to do so because, \u201cI got to think that I don\u2019t remember no batteries so I didn\u2019t go in.\u201d After his arrest, he told Glynn that he \u201chad never been at Little Miss Muffet\u201d because he \u201cdidn\u2019t want [his] wife to find out about it.\u201d On September 25, 1988, the date of the alleged phone call to Anderson, Finley was \u201cin the segregation *** in Cook County Jail\u201d and had no access to a pay phone; he denied making any phone calls on that day.\nFinley was convicted of armed robbery and sentenced to 25 years in custody of the Illinois Department of Corrections.\nFollowing his conviction, Finley wrote three letters to the trial judge in which he provided the names of persons who, he claimed, could testify that he was in Ford Heights at the time of the robbery (although he admitted being at the Little Miss Muffet earlier in the day), as well as the name of a medical doctor who had testified for him in a suit against the Department of Corrections, and who could testify again, that he could not use his right hand; accordingly, Finley asserted, he could not have held two guns, as Anderson had testified. Finley also charged that his public defender did not attempt to contact these potential witnesses and that she \u201cdid not represent me to the best of her ability.\u201d\nDuring the hearing on Finley\u2019s post-trial motion, which had been filed by his trial counsel, the circuit court, treating Finley\u2019s letters as \u201ca motion for the appointment of other counsel,\u201d denied his request, stating that \u201cthe allegations of the existence of all alibi witnesses made by the defendant in his letters is totally a contradiction to defendant\u2019s sworn testimony at trial.\u201d The judge noted further:\n\u201cWith regard to the defendant\u2019s further allegation of the testimony of a treating physician for an injury to his right hand that would prevent him from holding a gun in that hand. *** I find that is, this allegation is totally unsupported as the other allegation is. Totally unsupported by his own testimony and sworn testimony is totally without merit.\u201d\nFinley first claims that he was denied a fair trial by the prosecutor\u2019s argument and use of testimony to show that the assistant State\u2019s Attorney who approved his arrest warrant believed that he was guilty because of an investigation conducted by the felony review unit of the State\u2019s Attorney\u2019s office, and that he would not have approved the warrant otherwise; thus, the State is alleged to have improperly bolstered Anderson\u2019s credibility. The State responds that the argument and testimony \u201cmerely described the requisite steps taken to procure the arrest warrant,\u201d that \u201cthere was no testimony that the prosecutor had recommended charges against the defendant, rather, the prosecutor merely approved the charges, a requisite step towards procuring an arrest warrant\u201d and that the State \u201cdid not *** bolster the credibility of the complainant.\u201d\nDuring opening argument, the prosecutor claimed that \u201cAnderson identified the photograph of Leroy Finley. *** [The police then] contacted the State\u2019s Attorneys [sic] Office of Felony Review.\u201d An attorney from that office accompanied the police to an interview with Anderson, during which he again picked out Finley\u2019s photograph. The police then \u201cobtained a warrant for his arrest.\u201d\nAt trial, Detective Regan testified that on September 15, 1988, after Anderson identified Finley\u2019s photograph as that of one of his assailants, he \u201cnotified the Felony Review State\u2019s Attorneys [sic] Office.\u201d Felony review, he explained, \u201cis a unit comprised of State\u2019s Attorneys and they are there for the purpose of approving felony charges and warrants when they\u2019re sought by the police department.\u201d Over Finley's objection, Regan stated that before the felony review unit approves such charges or warrants, \u201c[tjhey must review all the facts and interview all the parties that are available.\u201d Regan stated that he accompanied an assistant State\u2019s Attorney to \u201cinterview]] Mr. Anderson and Mr. Anderson also looked at the photographs again and picked out *** Finley\u2019s photographs.\u201d After that identification, the assistant State\u2019s Attorney \u201capproved *** an arrest warrant for *** Finley.\u201d\nDuring closing argument, the prosecutor stated:\n\u201c[T]hey decide it is time for an arrest warrant, that this man is not coming in. He has been positively identified and has not cooperated. He is not showing up. We will get a warrant, and then again Detective Regan explained to you what is necessary to get a warrant. They just can\u2019t go out and get a warrant. They have to get approval from the State\u2019s Attorney\u2019s Office, and that State\u2019s Attorney has to again go over the evidence and review the evidence, so that State\u2019s Attorney goes and personally talks to Kevin again, and Kevin again\u2014\nMS. PANTLE [defense attorney]: Objection.\nTHE COURT: Overruled.\nMS. RIVERA [assistant State\u2019s Attorney]: Speaks to Kevin and Kevin tells him what happened. And that State\u2019s Attorney says well, I want to see if he can really identify this person.\nMS. PANTLE: Objection.\nTHE COURT: Overruled.\nMS. RIVERA: So the photo array is shown to Kevin again for the second time, and again he identifies the defendant. So, now the warrant is approved. Now, there is a warrant for the arrest of the defendant.\u201d\n\u201cA prosecutor\u2019s testimony that he recommended that charges be placed against a defendant after discussing the facts of the case with the police\u201d (People v. Turner (1984), 127 Ill. App. 3d 784, 792), or an assistant State\u2019s Attorney\u2019s testimony \u201cthat her function as a member of the Felony Review Unit *** was to \u2018determine whether or not the individual should be charged, and if the felony should be charged [to] determine which felon [sic] we should charge\u2019 \u201d (People v. Jones (1987), 155 Ill. App. 3d 641, 647) is error. It is permissible, however, for a police officer to testify that an assistant State\u2019s Attorney \u201capproved the charges\u201d when the officer is \u201cset[ting] forth the steps *** taken to procure arrest warrants\u201d and such approval is \u201ca requisite step to procuring arrest warrants.\u201d People v. Brandon (1990), 197 Ill. App. 3d 866, 879-80.\nEven when, as in the instant case, a prosecutor does not testify, argument \u201cthat the assistant State\u2019s Attorney, who prepared the complaint against the defendant, would not have submitted it to the court if he did not believe there was culpability\u201d is prohibited, as \u201c[t]he defendant ha[s] the right to be judged by the evidence in court, not by what some prosecutor might have thought of his guilt.\u201d (People v. Adkins (1973), 16 Ill. App. 3d 394, 396.) Further, it is error for the State to allude to a police officer\u2019s testimony \u201cas to the events that led to the arrest of an accused\u201d \u201cas substantive evidence indicating defendant\u2019s guilt,\u201d when the issue addressed by the argument is not an issue in the case. People v. Williams (1987), 159 Ill. App. 3d 612, 619-20.\nWe do not deem the disputed portion of the prosecutor\u2019s opening argument to be violative of these rules; it merely stated what events occurred before an arrest warrant was procured; those parts of Regan\u2019s testimony and of the closing argument which merely outlined what events led to the procurement of the warrant were similarly proper. (See Brandon, 197 Ill. App. 3d at 879-80.) Improper, however, was Regan\u2019s testimony that the felony review unit \u201cis *** comprised of State\u2019s Attorneys *** for the purpose of approving felony charges and warrants when they\u2019re sought by the police department\u201d and that before the State\u2019s Attorney\u2019s office can approve arrest warrants, \u201c[t]hey must review all the facts and interview all the parties that are available.\u201d Also improper was the State\u2019s closing argument that, \u201cThey just can\u2019t go out and get a warrant. They have to get approval from the State\u2019s Attorney\u2019s Office, and that State\u2019s Attorney has to again go over the evidence and review the evidence.\u201d These statements did more than merely outline \u201cthe procedures required to obtain an arrest warrant\u201d (People v. Curtis (1989), 190 Ill. App. 3d 207, 216).\nIn Williams, the arresting officer testified \u201cthat he arrested defendant [found guilty of cruelty to a child] on the basis of information provided by the [victim], his sister and the [arresting] officers and based on his own physical observations [of the victim].\u201d (Williams, 159 Ill. App. 3d at 615.) During rebuttal argument, the State said to the jury, \u201c[t]aking into account the picture [of the victim after the beating], taking into account the officer's testimony, take into account the \u2014 that when Defendant was finally arrested, by [the officer whose testimony is described above], that he relied on the information and the statements that were presented him by police and by the children.\u201d (159 Ill. App. 3d at 619-20.) The court held:\n\u201cIt was *** improper for [the officer] to testify that he arrested defendant based on the statements of the children. We recognize that a police officer may properly testify as to the events that led to the arrest of an accused under certain circumstances. [Citation.] However, [the officer\u2019s] testimony went beyond what was necessary to describe the investigation and arrest. Probable cause to arrest was not an issue. Furthermore, the prosecutor in his closing rebuttal argument alluded to this testimony as substantive evidence indicating defendant\u2019s guilt. Arguing the applicability of evidence beyond the limited purpose for which it is admissible is plain error.\u201d 159 Ill. App. 3d at 620.\nSee also People v. Okundaye (1989), 189 Ill. App. 3d 601, 624 (Murray, P.J., and Coccia, J., specially concurring) (prosecutors may not take advantage of the admissibility of evidence of police investigatory techniques in order to infer guilt).\nWe note that, in the instant case, neither probable cause to arrest Finley, nor Anderson\u2019s identification of Finley, was an issue at trial (see Williams, 159 Ill. App. 3d at 619-20). For that reason, that part of Regan\u2019s testimony set forth above and the above-indicated portion of the State\u2019s argument, insofar as they may have implied official approval of Finley\u2019s guilt and thus bolstered the State\u2019s evidence, were improper. Although we strongly condemn this type of bolstering by the State, we conclude that these errors were not material factors in Finley\u2019s conviction and the verdict could not reasonably have been different had they not occurred.\nFinley next alleges that the court erred in denying his motion for a mistrial, which was predicated on the State\u2019s alleged discriminatory use of its peremptory challenges during voir dire. He argues: (1) that the trial judge improperly accepted the State\u2019s explanations for its peremptory challenges in determining that Finley had failed to make a prima facie case of discrimination; (2) that the judge improperly considered, in finding that no prima facie case had been made, the extent to which the proportion of black people on the jury related to the proportion of black people in the community; (3) that even if the judge\u2019s actions were not improper, his determination that no prima facie case had been made was erroneous; and (4) that because a prima facie case had been made, this cause should be remanded for a hearing to determine the adequacy of the State\u2019s explanations for its challenges; but that if the record is complete enough for this court to determine the legal sufficiency of the State\u2019s proffered explanations, those explanations should be held to be inadequate and Finley\u2019s conviction should be reversed and his cause remanded for a new trial.\nThe State first responds that Finley neither objected to the trial judge\u2019s allegedly improper consideration of the State\u2019s explanations for its challenges in deciding that Finley had not made a prima facie case of discrimination, nor raised the issue in his post-trial motion; accordingly, he has waived review of the issue. We need not review this question, however, nor any others relating to the trial court\u2019s finding that Finley had failed to make a prima facie case. The trial court, after finding that a prima facie case had not been made, went on to find that the prosecutor had articulated permissible reasons for exercising its peremptory challenges against the three veniremembers. We hold that when the court made this finding, the issue of whether it had properly determined that no prima facie case had been made was rendered moot.\nBatson v. Kentucky (1986), 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719, held that \u201cthe Equal Protection Clause [(U.S. Const., amend. XIV, \u00a71)] forbids the prosecutor to challenge potential jurors solely on account of their race,\u201d and that if a prima facie case of purposeful discrimination is made, the prosecutor is required to articulate a race-neutral explanation for his peremptory challenge. (476 U.S. at 100, 90 L. Ed. 2d at 90, 106 S. Ct. at 1725.) In Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866, as in the instant case, \u201c[t]he prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court.\u201d Although Hernandez differed from the instant case in that \u201cthe trial court [in Hernandez] had no occasion to rule that [defendant] had or had not made a prima facie showing of intentional discrimination,\u201d while in the instant case the trial court did so rule, its later finding that the State\u2019s proffered reasons for its peremptory .challenges were proper, as in Hernandez, was a \u201crul[ing] on the ultimate [issue] of intentional discrimination, [which made] the preliminary issue of whether the defendant had made a prima facie showing *** moot.\u201d (Emphasis added.) (Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.) Accordingly, there is no need for this court to review the issue. See also People v. Johnson (1991), 218 Ill. App. 3d 967, 979.\nThe State then argues that its explanations for its challenges were sufficient to rebut the charge of discrimination. With regard to Martin, the prosecutor stated:\n\u201cI would state for the record that I think the record has already indicated Your Honor could not hear any of the woman\u2019s responses, nor could the court reporter. Even after Your Honor asked her to speak up, I could not hear anything that she said, Judge. I didn\u2019t know her first name. I could not hear a word that the woman said.\u201d\nIn discussing its challenge to Williams, the prosecutor noted:\n\u201c[H]is brother is a convicted felon, and it is my understanding he is still in the penitentiary for attempted murder. I think that he may show some possible sympathy for the defendant in this case, and I don\u2019t think anybody else has anybody in the penitentiary, black or white.\u201d\nThe trial judge stated that \u201cwith regards to Ms. Martin and Mr. Williams, I find these to be very objective challenges as to both of these people.\u201d\nFinley argues that the record does not support the State\u2019s explanation for its challenge to Martin and that the alleged inaudibility was not reasonably related to her performance as an impartial juror, thus allowing the inference that the State manufactured the explanation and that she was actually excluded because of her race. With regard to the prosecutor\u2019s challenge to Williams, Finley points out that Williams\u2019 brother had been convicted of a crime eight years earlier, that Williams had stated that the event would not influence him as a juror and that two nonexcluded jurors had themselves been prosecuted for, and one convicted of, a criminal offense. More specifically, Ronald Monroe had five years before been accused of stealing a lottery ticket, but the charge had been dismissed; while Daniel Varanauski had six years earlier been charged with burglary, which was later reduced to a misdemeanor and for which he was placed on probation, a sentence he had completed by the time of Finley\u2019s trial.\nFinally, the prosecutor explained his peremptory challenge to English by arguing:\n\u201cI noticed right away that he did not stop staring at my partner. I don\u2019t know if that is a compliment, or if he knows her, or doesn\u2019t know where he knows her from, but we both noticed that. We both felt extremely uneasy with him sitting approximately ten feet from us, as he was less than ten feet during the jury selection ***.\u201d\nThe trial court found that this was \u201ca subjective difference, and they [the prosecutors] are entitled to make that determination under these circumstances.\u201d Finley notes that the record fails to disclose any comment on English\u2019s demeanor by any other party to the proceeding, that the prosecution did not comment thereon until its motives in challenging the venireman were questioned, and that it made no effort to discern why English was supposedly staring at one of the prosecutors; accordingly, the legitimacy of the State\u2019s explanation is called into question.\nThe court in People v. Harris (1989), 129 Ill. 2d 123, 174-75, held that a trial court\u2019s determination about whether the State has come forward with sufficient reasons to rebut the defendant\u2019s prima facie case \u201cwill only be reversed if against the manifest weight of the evidence.\u201d Such reasons are sufficient if they are \u201cclear, reasonably specific, legitimate, and nonracial.\u201d (People v. Hope (1990), 137 Ill. 2d 430, 467, vacated on other grounds (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792.) We hold that the trial court\u2019s finding in the instant case does not warrant reversal.\nAs to veniremember Williams, the trial judge was clearly entitled to find that the reason given by the State for its challenge was \u201cclear, reasonably specific *** and nonracial\u201d; moreover, the factual basis is supported by the record. While it is true that the court in People v. Harris (1989), 129 Ill. 2d 123, 180, held that \u201calthough\" it is not conclusive, evidence that a stricken minority venireperson possessed the same characteristics as a nonminority juror on whom the State chose not to exercise a peremptory challenge should certainly be given great weight by the trial court in evaluating the State\u2019s explanations,\u201d here, neither veniremembers Monroe nor Varanauski had served time in jail. Hence, the trial court was reasonably entitled to accept the State\u2019s claim that it feared that Williams could \u201cshow some possible sympathy for the defendant in this case.\u201d\nTurning then to the State\u2019s challenge to Martin and English, we are mindful that:\n\u201c[Ejxplanations which focus upon a venireperson\u2019s body language or demeanor must be closely scrutinized because they are subjective and can be easily used by a prosecutor as a pretext for excluding persons on the basis of race.\u201d (Harris, 129 Ill. 2d at 176.)\nExcept for the prosecutor\u2019s statements, the record nowhere reflects either Martin\u2019s inaudibility or English\u2019s staring. The trial court, however, was in the best position to judge the credibility of the prosecutor\u2019s statements about Martin\u2019s and English\u2019s demeanor. As noted in Hernandez:\n\u201c[T]he decisive question will be whether counsel\u2019s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor\u2019s state of mind based on demeanor and credibility lies \u2018peculiarly within a trial judge\u2019s province.\u2019 \u201d (Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting Wainwright v. Witt (1985), 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854.)\nNeither the court nor Finley indicated any quarrel with the facts upon which the State based its exclusion; we therefore find no reason to overturn the trial judge\u2019s finding that the State\u2019s reason was acceptable. \u201c[T]he prosecutor\u2019s explanation need not rise to the level of justifying exercise of a challenge for cause,\u201d and there is no evidence that the challenges were based on \u201can assumption that the black members of the venire would be partial to the defendant because of their shared race.\u201d (Emphasis in original.) People v. Talley (1987), 152 Ill. App. 3d 971, 987 (legitimate to exclude a juror when prosecutor \u201cwas not too happy with [the person\u2019s] demeanor and how he answered the questions[ ]\u201d).\nFinley\u2019s final claim of error is that his request for independent counsel to represent him on his post-trial motion was not without merit, and that, therefore, the trial court erred in denying that request. The State responds that the bases upon which Finley requested independent counsel were without potential merit, and that the circuit court\u2019s determination to that effect was not manifestly erroneous.\nThe court in People v. Krankel (1984), 102 Ill. 2d 181, 187, held that where a defendant makes a pro se motion for a new trial on the ground of ineffective assistance of counsel, and where the trial court declines to appoint new counsel to represent the defendant at the post-trial hearing on his claim, the cause should be remanded for a hearing, at which the defendant is to be represented by newly appointed counsel.\nFailure by trial counsel to contact witnesses who could possibly have had a serious impact on a case where, as here, the victim and the accused were the only eyewitnesses to the offense could conceivably support an ineffective assistance of counsel claim. (See People v. Jameson (1987), 155 Ill. App. 3d 650, 661-63.) Moreover, we disagree with the trial court\u2019s finding that what the proffered witnesses could have testified to was inconsistent with Finley\u2019s testimony at trial.\nFinley does not dispute his presence at the Little Miss Muffet on the day in question; rather, he testified that while he was there, he did not commit the acts with which Anderson charged him. Although Finley\u2019s affirmative response to the question, \u201cAnd directing your attention to September 11, 1988 around two o\u2019clock in the afternoon, did you have the occasion to go anywhere?\u201d buttressed Anderson\u2019s claim that the crime occurred at 2:20 p.m., his statement made only a few questions later, in response to a nonleading question, that he \u201carrivefd] at the Little Miss Muffet\u201d at \u201c[a]bout 12:40\u201d is consistent with his claim that witnesses could testify that he was not in Chicago at the time of the incident. In addition, Finley\u2019s allegation that testimony could establish his inability to hold a gun in both hands is \u201cunsupported by his own testimony,\u201d as the trial judge noted, because Finley was never asked about his medical condition. In his letters to the judge, Finley named all of the prospective witnesses and described what their testimony would be.\nWe do not decide whether Finley can successfully argue ineffective assistance of counsel in a post-trial proceeding; instead, we hold that the trial judge did not accord Finley\u2019s claim proper consideration since it \u201cha[s] potential merit\u201d (People v. Brandon (1987), 157 Ill. App. 3d 835, 847), and whether he is entitled to be represented by new counsel from other than the public defender\u2019s office to argue his claim of incompetence of trial counsel should be determined on remand in light of the supreme court\u2019s ruling on the issue in the case of People v. Banks (1987), 121 Ill. 2d 36.\nAccordingly, we remand this cause for a proper post-trial hearing solely on Finley\u2019s allegation of ineffective assistance of counsel, but we affirm the judgment in all other respects. \u201cIf, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel based upon counsel\u2019s alleged failure to present a valid alibi defense, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant\u2019s conviction and sentence ***. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel ***.\u201d Krankel, 102 Ill. 2d at 189.\nAffirmed in part; reversed in part and remanded.\nHARTMAN and DiVITO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SCARIANO" } ], "attorneys": [ "Michael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Joseph W. Colaianne, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY FINLEY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201489\u20142215\nOpinion filed November 26,1991.\nRehearing denied January 7,1992.\nMichael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Joseph W. Colaianne, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0571-01", "first_page_order": 591, "last_page_order": 605 }