People v. Duffie ( 2022 )

2022 IL App (2d) 210281No. 2-21-0281
Opinion filed August 4, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-714
)
RAHSHAN D. DUFFIE, ) Honorable
) Robert A. Wilbrandt Jr.,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of McHenry County, defendant, Rahshan D.
Duffie, was convicted of escape (730 ILCS 5/5-8A-4.1(a) (West 2020)) based on evidence that he
violated the terms of his pretrial release in the underlying prosecution, case No. 20-CF-243, by
removing an electronic monitoring device from his ankle. Defendant argues that we must reverse
his conviction because the State failed to prove that he received notice that his failure to comply
with the conditions of the electronic monitoring program could lead to an escape prosecution. We
reject that argument but accept defendant’s alternative contention that, during jury selection, the
trial court failed to conduct proper proceedings under Batson v. Kentucky, 476 U.S. 79 (1986). We
2022 IL App (2d) 210281enter a limited remand for compliance with Batson, consistent with People v. Trejo, 2021 IL App
(2d) 190424-B.
¶2 I. BACKGROUND
¶3 Defendant was charged by indictment with a single count each of escape and criminal
damage to government supported property (720 ILCS 5/21-1.01(a)(1) (West 2020)). As noted, the
escape charge was based on his removing an electronic monitoring device from his ankle. The
damage-to-government-supported-property charge was based on the damage caused when
defendant unlawfully removed the device.
¶4 During jury selection, the prosecutor questioned prospective juror Travis Wilbert, a retired
national bank examiner, about his former occupation. Wilbert indicated that his position entailed
knowledge and application of banking laws. Asked whether he would describe himself as “more
of an analytical person or common sense person,” Wilbert responded, “I’m both.” Wilbert
elaborated:
“[W]ithin my position, I had to use common sense as well with the laws there can be some
gray areas, and working with clients, so you have to use common sense, but then also have
to be analytical to identify where a violation of the law has occurred.”
¶5 The prosecutor asked whether there were times when Wilbert “had to take all these
different factors into play to determine whether a violation occurred.” Wilbert responded:
“Definitely had to take a lot of things into play. I mean ***, the violation of law
was there. What was—you know, did you intentionally violate the law or was it over, you
know, something you overlooked that caused the violation of law; so those type of, you
know, reasoning, thought process entered into things.”
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2022 IL App (2d) 210281¶6 The prosecutor exercised a peremptory challenge against Wilbert. The trial court
interjected, “You need a Batson reason on Mr. Wilbert.” The prosecutor responded that her
concerns arose from Wilbert’s answers to questions about the role of the law in his former
occupation of bank examiner. The prosecutor explained:
“Judge, his answer to the question the law he applied in bank cases, where someone
could commit a technical violation, but he said that like even if it’s a technical violation,
he has to look at all the surrounding circumstances and that causes me concern because we
want somebody who is going to follow the law exactly as it is, not consider, you know,
well, it wasn’t that big of a violation.
And I think that the factors that he applied in his job are very different from what
we apply here. He is familiar with the bank law and federal and state law, so that was—
that was the concern that we had and the reason that we would be asking to strike him.”
¶7 Defense counsel objected to the challenge, stating, “[T]he [S]tate doesn’t like [Wilbert]
because they think he will be favorable to my client and I don’t think it’s for good reasons. I think
it’s—the reasons are suspicious.” Defense counsel added that Wilbert was “the only person of
color in this courtroom.” The trial court allowed the State’s peremptory challenge, stating, “The
court believes that the [S]tate has a reason that would comply with Batson.”
¶8 The evidence at trial established that in March 2020 defendant was charged with theft and
was released on bond but was ordered to wear an electronic monitoring device attached by a strap
to his ankle. Before the device was placed on his ankle, defendant signed a document titled
“McHenry County Court Services Electronic Monitoring Agreement” (Agreement). By signing,
defendant agreed to wear the electronic monitoring device 24 hours a day and remain home during
his 11:30 p.m. to 8 a.m. curfew. He also acknowledged that physical evidence that the device had
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2022 IL App (2d) 210281been tampered with or removed would constitute prima facie evidence that he violated the
Agreement and might result in a warrant for his arrest. The Agreement stated that the failure to
return the device would result in a criminal charge of theft of property worth over $300. The
Agreement did not specify any other criminal consequences of noncompliance. On June 3, 2020,
the monitoring device issued a “strap tamper” alert. Defendant missed a court appearance, and a
warrant was issued for his arrest. He was taken into custody in September 2020. At some point,
defendant informed the authorities that the monitoring device was in his girlfriend’s possession.
She returned the monitoring device to the authorities. Its ankle strap had been cut. There was no
evidence that defendant was ever given notice that his failure to comply with the conditions of the
electronic monitoring program could result in an escape charge.
¶9 After the State rested, defense counsel moved for a “directed finding” on the ground that
defendant had not received the required notice under section 5-8A-4(H) of the Electronic
Monitoring and Home Detention Law (Electronic Monitoring Law) (730 ILCS 5/5-8A-4(H) (West
2020)) that failure to comply with the conditions of his release under the Electronic Monitoring
Law could result in a prosecution for escape. The trial court denied the motion, reasoning that
receipt of such notice was not an element of the offense. Defendant unsuccessfully objected to the
State’s proposed jury instructions that did not indicate that the State was required to prove that
defendant received section 5-8A-4(H) notice.
¶ 10 The jury found defendant guilty of both escape and criminal damage to government
supported property. In his posttrial motion, defendant again argued that his conviction could not
stand absent proof of section 5-8A-4(H) notice. The trial court denied the motion. The court
merged the criminal-damage-to-government-supported-property conviction into the escape
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2022 IL App (2d) 210281conviction under the one-act, one-crime rule. The court sentenced defendant to 4½ years in prison.
This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 Defendant first argues that we must reverse his conviction because he was not given the
required notice under the Electronic Monitoring Law that violating the conditions of his electronic
monitoring program could result in his prosecution for escape. Defendant was charged with escape
pursuant to section 5-8A-4.1(a) of the Electronic Monitoring Law (id. § 5-8A-4.1(a)), which
provides, in pertinent part:
Ҥ 5-8A-4.1. Escape; failure to comply with a condition of the electronic
monitoring or home detention program.
(a) A person charged with or convicted of a felony *** conditionally released from
the supervising authority through an electronic monitoring or home detention program,
who knowingly violates a condition of the electronic monitoring or home detention
program *** is guilty of a Class 3 felony.”
¶ 13 During the relevant time frame, section 5-8A-4(H) of the Electronic Monitoring Law (id.
§ 5-8A-4(H)) provided, in pertinent part:
“The supervising authority may promulgate rules that prescribe reasonable guidelines
under which an electronic monitoring and home detention program shall operate. When
using electronic monitoring for home detention these rules shall include but not be limited
to the following:
***
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2022 IL App (2d) 210281(H) Notice to the participant that violation of the order for home detention may subject
the participant to prosecution for the crime of escape as described in Section 5-8A-4.1.”
(Emphasis added.)
¶ 14 Defendant argues that the State failed to meet its burden of proof because it presented no
evidence that he received the notice section 5-8A-4(H) requires. Defendant claims that the trial
court misinterpreted the law by ruling that receipt of section 5-8A-4(H) notice is not a prerequisite
to a prosecution under section 5-8A-4.1.
¶ 15 The pertinent facts are not in dispute. Defendant acknowledges that, by removing the
monitoring device, he violated a condition of his pretrial release. Likewise, there is no dispute that
he was not given the notice required by section 5-8A-4(H). The sole question is whether receipt of
such notice is an element of the offense of escape as defined in section 5-8A-4.1 of the Electronic
Monitoring Law or a prerequisite to prosecution. This is a matter of statutory construction. Our
supreme court recently observed:
“The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s
intent. [Citation.] The most reliable indicator of legislative intent is the language of the
statute, given its plain and ordinary meaning. [Citation.] It is improper for a court to depart
from the plain statutory language by reading into the statute exceptions, limitations, or
conditions that conflict with the clearly expressed legislative intent. [Citation.] Where
statutory language is clear and unambiguous, it will be given effect without resort to other
aids of construction. [Citation.] If the meaning of an enactment is unclear from the statutory
language, the court may consider the purpose behind the law and the evils the law was
designed to remedy. [Citation.] The statute should be read as a whole and construed so as
to give effect to every word, clause, and sentence; we must not read a statute so as to render
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2022 IL App (2d) 210281any part superfluous or meaningless. [Citation.] Words and phrases must be interpreted in
light of other relevant provisions of the statute and must not be construed in isolation.
[Citation.] We have an obligation to construe statutes in a manner that will avoid absurd,
unreasonable, or unjust results that the legislature could not have intended. [Citation.]”
Palm v. Holocker, 2018 IL 123152, ¶ 21.
¶ 16 Nothing in the plain language of the definition of escape in section 5-8A-4.1 of the
Electronic Monitoring Law suggests that receipt of notice is an element of the offense or a
prerequisite to prosecution. Defendant argues, however, that section 5-8-4.1 must be read in
conjunction with section 5-8A-4(H). He contends that, because section 5-8A-4(H) provided that
the rules governing an electronic monitoring and home detention program “shall” include notice
that a violation might lead to a prosecution for escape, the notice requirement was mandatory for
a prosecution. Defendant further argues that, if receipt of section 5-8A-4(H) notice is not an
element of the offense, the notice requirement is superfluous. We consider these arguments in
reverse order.
¶ 17 We disagree with defendant’s argument that the notice requirement would be superfluous
unless receipt of notice is an element of the offense of escape. Such a view of the notice
requirement presumes that it was intended for the benefit of criminal defendants. However, by
promoting compliance with the conditions of electronic monitoring, the notice requirement
enhances the effectiveness of the electronic monitoring program and promotes public safety. The
notice requirement serves this salutary function whether or not receipt of notice is an element of
the offense of escape or a prerequisite to prosecution. On the other hand, defendant knew that he
was not permitted to remove the monitoring device, and he agreed not to do so. Defendant’s
argument implies that the General Assembly intended to provide him (and other defendants
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2022 IL App (2d) 210281similarly situated) notice of the possible consequences of what he knew to be a wrongful act so
that he could make an informed decision whether to violate the law. Absent a clearer expression
in the language of the statute, we are unwilling to assume that the General Assembly intended such
a result.
¶ 18 This conclusion leads us to reject defendant’s argument that, because the notice
requirement is mandatory, failure to comply requires reversal of his conviction. “Mandatory” has
two different senses, depending on whether it is used in contradistinction to “permissive” or in
contradistinction to “directory.” See People v. Delvillar, 235 Ill. 2d 507, 514 (2009). When used
in contradistinction to “permissive,” “mandatory refers to an obligatory duty which a governmental
entity is required to perform.” (Internal quotation marks omitted.) Id. “The term permissive refers
to a discretionary power, which a governmental entity may exercise or not as it chooses.” (Internal
quotation marks omitted.) Id.¶ 19 The second distinction, which governs here, is between “mandatory” and “directory.” In
Delvillar, our supreme court explained that “statutes are mandatory if the intent of the legislature
dictates a particular consequence for failure to comply with the provision. [Citation.] In the absence
of such intent the statute is directory and no particular consequence flows from noncompliance.”
Id. at 514-15. The Delvillar court added:
“With respect to the mandatory/directory dichotomy, we presume that language issuing a
procedural command to a government official indicates an intent that the statute is
directory. [Citation.] This presumption is overcome under either of two conditions. A
provision is mandatory under this dichotomy when there is negative language prohibiting
further action in the case of noncompliance or when the right the provision is designed to
protect would generally be injured under a directory reading. [Citation.]” Id. at 517.
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2022 IL App (2d) 210281¶ 20 In Delvillar, the defendant, a resident alien, contended that the trial court improperly
accepted his guilty plea because the court did not first admonish him, as required by statute, that
his conviction could affect his immigration status. In determining that the statute was directory
rather than mandatory, the Delvillar court first noted the absence of language preventing the court
from accepting a guilty plea in the absence of a proper admonition. Id. at 517-18. The Delvillar
court also concluded that failure to give the statutory admonition would not generally impair the
right the statute was designed to protect, to wit, the right to intelligently waive a jury trial and plead
guilty. Id. at 518-19.
¶ 21 Here, as in Delvillar, the statutory provisions in question contain no language prohibiting
a prosecution for escape in the absence of section 5-8A-4(H) notice. Also, we are not persuaded
that the failure to give notice will generally result in violations of the conditions of release on
electronic monitoring. Furthermore, as discussed above, defendant was fully aware of, and agreed
to, the conditions of release on electronic monitoring. We are not persuaded that the notice
requirement was designed to protect defendant from the consequences of his knowing misconduct.
Defendant has only himself to blame for his escape conviction, even if it is a more severe outcome
than he might have anticipated. Finally, as discussed, to the extent that section 5-8A-4(H) notice
encourages compliance with the conditions of release, it benefits the public. To the extent that
failure to give notice is injurious to the public, immunizing a defendant from prosecution for escape
would only exacerbate the injury. We, therefore, conclude that the State met its burden of proof
without showing that defendant received section 5-8A-4(H) notice.
¶ 22 We next consider defendant’s argument that the trial court failed to conduct proper
proceedings under Batson. In Batson, the United States Supreme Court held that the equal
protection clause of the fourteenth amendment (U.S. Const., amend. XIV) forbids prosecutors from
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2022 IL App (2d) 210281exercising peremptory challenges to potential jurors solely on account of their race. Batson, 476
U.S. at 89. Batson developed a three-step process for determining whether a peremptory challenge
violates that principle. “First, the defendant must make a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race.” People v. Davis, 231 Ill. 2d 349, 360
(2008). “To determine at the first step whether racial bias motivated a prosecutor’s decision to
remove a potential juror, a court must consider the totality of the relevant facts and all relevant
circumstances surrounding the peremptory strike to see if they give rise to a discriminatory
purpose.” (Internal quotation marks omitted.) Id. Relevant factors in determining the existence of
a prima facie case include
“(1) the racial identity between the party exercising the peremptory challenge and the
excluded venirepersons; (2) a pattern of strikes against African-Americans on the venire;
(3) a disproportionate use of peremptory challenges against African-Americans; (4) the
level of African-American representation in the venire compared to the jury; (5) the
prosecutor’s questions and statements of the challenging party during voir dire
examination and while exercising peremptory challenges; (6) whether the excluded
African-American venirepersons were a heterogeneous group sharing race as their only
common characteristic; and (7) the race of the defendant, victim and witnesses.” Id. at 362.
See also People v. Rivera, 221 Ill. 2d 481, 501 (2006).
¶ 23 Once a prima facie case has been made, the matter proceeds to the second step, at which
the State must provide a race-neutral explanation for its decision to challenge the prospective juror
and the defendant has the opportunity to rebut the State’s explanation as pretextual. Davis, 231 Ill.
2d at 362-63. In the third step, “the trial court must determine whether the defendant has shown
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2022 IL App (2d) 210281purposeful discrimination in light of the parties’ submissions.” Id. at 363. The Davis court
described the third step as follows:
“Step three of the Batson inquiry involves an evaluation of the prosecutor’s
credibility, and the best evidence of discriminatory intent will often be the demeanor of the
attorney who made the peremptory challenge. [Citation.] Additionally, as is the case here,
a race-neutral reason for a challenge often invokes a juror’s demeanor (e.g., nervousness,
inattention, the way words are emphasized to express differing meanings), making the trial
court’s firsthand observations of crucial importance. In such situations, the trial court must
evaluate not only whether the prosecutor’s demeanor belies discriminatory intent, but also
whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike
attributed to the juror by the prosecutor. [Citation.]” Id. at 363-64.
¶ 24 Where the defendant objects under Batson to a peremptory challenge by the State, the
defendant bears the burden of making a prima facie case and preserving the record. Id. at 365.
However, where, as in this case, the trial court raises a Batson issue sua sponte, that responsibility
falls on the trial court. Id. at 366. “[T]he trial court must make an adequate record consisting of all
relevant facts, factual findings, and articulated bases for both its finding of a prima facie case and
for its ultimate determination at the third stage of the Batson procedure.” Rivera, 221 Ill. 2d at 515.
Moreover,
“when the trial court acts sua sponte to conduct a Batson hearing, a bifurcated standard of
review applies: the court’s findings of fact, including any specific observations of record
bearing on demeanor or credibility, will be accorded deference; however, the ultimate legal
determination based on those findings is one that we make de novo.” Davis, 231 Ill. 2d at
364.
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2022 IL App (2d) 210281¶ 25 In Davis, the trial court sua sponte raised the issue of whether the State improperly used a
peremptory challenge against an African American prospective juror, Robert Hicks. The State
replied that it exercised the challenge because Hicks equivocated when asked if he could be a fair
juror. Defense counsel objected, noting that other jurors had answered similarly to Hicks but the
State did not challenge them. The trial court ultimately determined that the State provided a race-
neutral reason for challenging Hicks. On appeal, the defendant argued that the State’s articulated
reason for challenging Hicks was pretextual, as the State had accepted other prospective jurors
whose answers were also equivocal. The supreme court remanded for a new Batson hearing. The
court observed that, though the trial court sua sponte raised the Batson issue, the court “did not
make any findings with respect to the credibility of the prosecutor, or with respect to the demeanor
of Hicks and the accepted jurors who allegedly equivocated in their answers.” Id. at 368. Although
the defendant had not identified those jurors during the Batson proceedings, the Davis court noted
that “it is also true that the trial court did not ask defense counsel to elaborate or provide any more
detail as to his argument on pretext.” Id. The Davis court reiterated that “the judge had the
obligation to make a complete record for our review in this setting where he was essentially acting
sua sponte.” Id. The court concluded that what the record did show was that “the trial court
collapsed the three-step Batson procedure into one step that looked only at whether the State could
offer a race-neutral explanation for the strike.” Id.
¶ 26 Defendant argues that the trial court here failed to follow the three-step process outlined in
Batson and failed to adequately develop the record for review. Defendant acknowledges that,
because he did not raise the issue in his posttrial motion, he failed to preserve it for appellate
review. See, e.g., People v. Enoch, 122 Ill. 2d 176, 187 (1988) (failure to include an issue in a
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2022 IL App (2d) 210281posttrial motion results in forfeiture of that issue on appeal). However, defendant argues that the
issue is reviewable under the plain error rule. The plain error rule has been explained as follows:
“[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when
(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill.
2d 551, 565 (2007).
Quoting People v. Lann, 261 Ill. App. 3d 456, 467 (1994), defendant contends that, “[i]n
[defendant’s] case, the second prong applies because ‘discrimination in selecting a jury
disgracefully impugns the integrity of the judicial process.’ ” The State responds that the first step
in the plain error analysis is to determine whether error occurred at all. See People v. Walker, 232
Ill. 2d 113, 124 (2009). According to the State, no error occurred and thus there was no plain error.
For the reasons set forth below, we disagree with the State.
¶ 27 Here, as in Davis, the trial court raised the Batson issue sua sponte. Accordingly, the court
was required to make an adequate record of the bases of its finding of a prima facie case. Here,
the trial court not only failed to make an adequate record, but it also never even expressly found
that a prima facie case existed. Although the State infers that the trial court found a prima facie
case, that inference is insufficient to satisfy the requirements of Davis, which requires the trial
court to make an adequate record of its finding of a prima facie case.
¶ 28 Regarding the second step of the Batson process, the State contends that it offered a race-
neutral reason for challenging Wilbert. When the trial court asked the State to provide such a
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2022 IL App (2d) 210281reason, the State said it was concerned that, in his work as a bank examiner, Wilbert used common
sense and discretion in determining when to enforce banking laws. The State wanted jurors who
would apply the law exactly as instructed. This reason was clearly race-neutral. As the Davis court
explained, “a ‘neutral explanation’ means any ‘explanation based on something other than the race
of the juror.’ ” Davis, 231 Ill. 2d at 367 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)
(plurality opinion)). But for a peremptory challenge to survive a Batson objection, the trial court
must find, at the third step of the Batson process, that the State is not guilty of purposeful
discrimination, which depends on whether the proffered reason for the peremptory challenge was
pretextual. Moreover, as previously explained, Davis requires the trial court to make a record of
its findings when (as here) it acts sua sponte. The court here simply declared that it believed “that
the [S]tate has a reason that would comply with Batson.” It is not altogether clear whether this was
a finding of no purposeful discrimination or simply a finding that the State offered a facially race-
neutral reason for the peremptory challenge. Even assuming, for the sake of argument, that the
trial court made the appropriate finding, the record is inadequate because, as in Davis, the trial
court did not make a record sufficient to facilitate a meaningful review of that finding. Notably, as
in Davis, the trial court did not make any findings as to the credibility of the prosecutor or the
demeanor of the challenged juror, which are principal considerations in determining whether the
prosecutor engaged in purposeful discrimination.
¶ 29 We conclude that a remand for a proper Batson hearing is necessary. We retain jurisdiction
to review the trial court’s decision on remand, which it shall support with appropriate findings of
fact and conclusions of law. The trial court shall hold a hearing within 30 days of the filing of this
opinion. Following the hearing, the trial court shall, within 60 days, file its findings and
conclusions with the clerk of this court, accompanied by the record of the proceedings on remand.
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2022 IL App (2d) 210281Then, the parties shall have the opportunity to submit supplemental briefs to this court if they so
choose.
¶ 30 III. CONCLUSION
¶ 31 For the reasons stated, we remand this cause to the circuit court of McHenry County for
further proceedings consistent with this opinion.
¶ 32 Cause remanded.
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2022 IL App (2d) 210281People v. Duffie, 2022 IL App (2d) 210281Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 20-CF-
714; the Hon. Robert A. Wilbrandt Jr., Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Ann Fick, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
for Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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