People v. Rivera

Docket No. 98609.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
MICHAEL RIVERA, Appellant.
Opinion filed May 18, 2006.BModified upon denial of
rehearing June 29, 2006.
JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, Kilbride, and Garman concurred in the judgment
and opinion.
OPINION
The defendant, Michael Rivera, was charged in the circuit
court of Cook County with two counts of first degree murder.
Following a jury trial, the defendant was found guilty and was
subsequently sentenced to 85 years= incarceration in the Illinois
Department of Corrections. Defendant appealed, arguing that
(1) the trial court erred when it sua sponte raised a
reverse-Batson (see Batson v. Kentucky, 476 U.S. 79, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986)) challenge to his use of a
peremptory challenge during jury selection, (2) the procedure
resulting in the imposition of his extended-term sentence
violated the rule announced in Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and (3)
the procedure resulting in the imposition of his extended-term
sentence violated his right to a jury trial as guaranteed by the
Illinois Constitution. A divided appellate panel rejected those
contentions and affirmed defendant=s conviction and sentence.
348 Ill. App. 3d 168. We granted the plaintiff=s petition for leave
to appeal. 177 Ill. 2d R. 315.
On appeal, defendant advances multiple arguments, all of
which are merely facets of the same Batson and Apprendi
arguments defendant raised below. Specifically, defendant
submits that (1) trial judges do not have third-party standing to
raise Batson challenges sua sponte; (2) the trial court=s sua
sponte Batson challenge to defense counsel=s peremptory
strike of juror Deloris Gomez was incompatible with the three-
step Batson process; (3) the trial court erred in proceeding to
the second step of the Batson process where no inference of a
prima facie case of discrimination had been established; (4) the
trial judge erred in his ultimate determination that defense
counsel discriminated against juror Gomez; (5) the trial court=s
improper denial of defense counsel=s peremptory strike of juror
Gomez was reversible error; (6) the trial court=s Aviolation of
state statutory and constitutional guarantees to jury trial@ are
not amenable to harmless-error review; (7) Apprendi violations
are not subject to harmless-error review; and (8) Apprendi
violations in this case are not harmless beyond a reasonable
doubt. Defendant=s individual contentions will be addressed, as
warranted, in the context of the broader Batson and Apprendi
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issues he has raised. We will set forth only those facts
pertinent to the issues defendant has raised.
BACKGROUND
During jury selection, defense counsel questioned juror
Deloris Gomez, a business office supervisor at Cook County
Hospital=s out-patient orthopedic clinic. In the course of that
questioning, Gomez acknowledged that Cook County Hospital
is known for the treatment of gunshot victims and, as a part of
her employment at the clinic, she has contact with patients,
Achecking them in.@ Gomez said her interaction with the victims
of violent crime would not affect her ability to serve as a juror in
the case. Following voir dire, and apparently in the presence of
Gomez and other prospective jurors, defense counsel
announced his intention to use his fourth peremptory challenge
against Gomez, as the following excerpt from the transcript
indicates:
AMR. DECKER [Defense attorney]: Your Honor, with
thanks, we would ask to excuse Mrs. Gomez.
THE COURT: I=m going to ask you to remain, Mrs.
Gomez. I=m going to ask counsel to join me, if the court
reporter will join me, and the defendant will join me in
chambers. Excuse me, ladies and gentlemen.@
In chambers, the court directed defense counsel to Akindly
articulate a basis of why you are excusing Ms. Gomez.@
Defense counsel protested, AThe court has done it on its own
motion sua sponte.@ The trial court responded: AI will do it. It is
the citizen=s right to sit as a juror, and I will implicate myself sua
sponte if I feel somebody=s rights are being impinged upon ***.@
Defense counsel then complied with the court=s directive,
responding:
AMrs. Gomez has a connection to a hospital that on
a daily basis probably sees more gunshot victims than
any other hospital in the world ***. Given that fact that
she=s in the orthopedic section, I think on a daily basis
even though she=s a supervisor, even though she=s not
a rehabilitative nurse, she on a daily basis sees those
victims who are victims of violent crime. For those
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reasons it constrains me. I know she has some kind of
Hispanic connection given her name. I=m pulled in two
different ways. For those reasons I asked that the B.@
At that point in defense counsel=s explanation, the trial court
interrupted counsel, noting that AMrs. Deloris Gomez appears
to be an African-American.@ The court then asked to Ahear
from@ the State on the issue, the prosecutor having been totally
silent and uninvolved to that juncture. After some initial
observations regarding the theory of the case and the issue for
the jury=s consideration, the prosecutor echoed the court=s
sentiment that the offered cause for excusing Gomez was
insufficient. Defense counsel then noted that he had previously
accepted an African-American woman to sit on the jury, and
the court quickly pointed out that Gomez was the second
African-American woman that the defense had sought to
exclude. The court stated it was the articulated reason given
for the peremptory challenge of Gomez that was of particular
concern. The court concluded:
AI=ve heard her answers to the questions. I=ve looked
at her jury information form, and I=m quite frankly very
much concerned, Counsel, as to why Mrs. Deloris is
being excusedBMrs. Deloris Gomez is being excused.
She works in a clinical division of this hospital. It may
have a reputation of having many emergency cases, I
presume, involving gunshot cases, but again she works
in a business office, the very first line identifying her job.
***
I did this sua sponte because I was concerned about
the right of Mrs. Gomez to be a juror and participate. If
the State in fact had done this, I certainly would have
found they would have established a prima facie case
by the very reasonBwhat I=m going to do is allow Ms.
GomezBallow her to be seated, not excuse her on the
basis of your peremptory.
I feel under these circumstances the reasons given
by you, Mr. Decker, do not satisfy this Court. As far as
I=m concerned, it=s more than a prima facie case of
discrimination against Mrs. Gomez. I=m not going to
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allow her to be excused. She will be seated as a juror
over objection.@
Defense counsel then asked for, and was granted, leave to
conduct further questioning of Gomez, and noted defendant=s
objection of record. Further questioning of Gomez was
conducted by defense counsel in chambers. Gomez again
acknowledged the Agreat number of patients@ who are seen in
Cook County Hospital=s emergency room Aas a result of violent
crimes@; however, Gomez pointed out that the clinic where she
works is a separate building. Defense counsel=s questioning of
Gomez continued:
AMR. DECKER: But the individuals that are seen
there at Fantus Clinic, I know they are not seen in the
emergency room on an emergency room basis; you
don=t have the facilities there. It=s mainly appointments
that people are awaiting and people picking up
medications. I believe there is a pharmacy also, I
believe, there on the first floor?
JUROR GOMEZ: Yes, it is.
MR. DECKER: Certainly some of those victims
areBcertainly some of those patients were victims of gun
violence?
JUROR GOMEZ: Yes, they were.
MR. DECKER: Does that fact set you off against my
client as opposed to if he was charged with something
else, you know, suppose if he was a defendant charged
with theft or possessing a stolen motor vehicle, that=s
our concern?
JUROR GOMEZ: No, it does not. It does not affect
me in that way.
MR. DECKER: Do you still feel you=d be able to fairly
view the evidence and follow the instructions and the
law that his Honor, Judge Fiala, will be giving you?
JUROR GOMEZ: Yes, I do.@
With the conclusion of counsel=s questioning, the trial court
directed Gomez to resume her seat in the jury box.
Subsequently, out of juror Gomez=s presence, the trial court
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inquired of defense counsel whether counsel wished to say
anything further. Counsel responded:
AYes, your Honor. My feeling [sic] are still the same.
I feel that I=m trying to modify the composition of this
panel. I=m not trying to exclude a woman because of her
race, butBstrike thatBnot trying to excuse a juror
because of her race. But also I think I can also factor in
the fact that she would now be out of theBby the fact
that the jury is predominantly women, I=m trying to get
some impact from possibly other men in the case. I just
don=t feel that under these circumstances my client
should be precluded from his reason to exercise a
peremptory challenge.@
Defense counsel asked the trial judge if he had ever been to
Fantus Clinic, and the court advised counsel that the court
could not comment on that. Defense counsel then told the
court: AIt=s wall to wall victims and patients coming in there, and
I could see it=s a disturbing place for me to be there when I=ve
been there.@
The court concluded:
AI had the opportunity to question Deloris Gomez
who I find is a very intelligent lady. I considered her
statements very carefully, her testimony very carefully,
and I again feel that she shall sit as a juror. I shall not
excuse her, and I will override your peremptory
challenge as to Ms. Gomez, and I find no basis for
cause. So Mrs. Gomez shall sit as a juror.@
In view of the court=s ruling as to Gomez, defense counsel
asked to excuse Aas [defendant=s] fourth peremptory[,] Mr.
Kurich.@ Inexplicably, the court responded as to that
peremptory challenge, AWith reluctance I will allow it.@
When the evidentiary portion of defendant=s trial
commenced, the State presented evidence establishing that
defendant shot and killed 16-year-old Marcus Lee, erroneously
believing that Lee was a member of a rival gang. Defendant
does not challenge the sufficiency of the evidence supporting
his murder conviction, and he raises, as additional error, only
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an Apprendi issue; therefore, we set forth only the trial
evidence pertinent to that issue.
At trial, the State called Susan Shelton, Miguel Rodriquez,
and Charles Oberlin to testify regarding the events of January
10, 1998, the night of the murder. All three witnesses were
former members of defendant=s gang, the Insane Deuces.
Susan Shelton testified that she was with the defendant on
the night of the murder. That evening, Shelton attended a party
where defendant and several other members of the Insane
Deuces were also in attendance. At some point in the evening,
defendant, Shelton, Carlos Sanchez (also a gang member),
and three others left the party in Sanchez=s van, with Sanchez
driving. While they were driving around defendant saw two
persons walking down the street. Defendant identified those
individuals as members of a rival gang. Defendant directed
Sanchez to stop the van. Defendant then produced a gun and
exited the van, but returned a few seconds later, instructing
Sanchez to chase the two persons they had just seen. Shelton
testified that they never saw those two individuals again that
night, but defendant later noticed another individual on the
street, and announced, AThere go [sic] that pussy ass Stone
from earlier.@ Shelton knew that the Insane Deuces and the
Stones were rival gangs.
Defendant pointed his gun at Sanchez and ordered him to
Astop the fucking van.@ When the van stopped, defendant
exited the van, still holding the gun. Two other occupants
followed. Defendant ran around the side of the van, and out of
Shelton=s sight. Shelton then heard gunshots. Defendant and
the others returned to the van, with defendant still holding the
gun. The two other individuals with defendant were yelling
gang slogans until defendant told them to Ashut the fuck up,@
advising them that he still had Aone bullet left.@ Defendant was
the only person Shelton saw armed with a weapon that
evening. After the shooting, defendant continued to direct the
van=s movements. At one point, defendant ordered the van to
stop in an alley. Defendant unloaded the gun and handed the
shell casings to Shelton. Defendant got out of the van with the
gun and later returned without it. Shelton gave the shell
casings to Sanchez, and he apparently disposed of them.
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Sanchez then took defendant and three other individuals back
to the party. Shelton testified that she believed defendant to be
the Achief enforcer@ of the Insane Deuces, a gang position
below the chief, or Ajefa,@ and above the foot soldiers.
Miguel Rodriguez testified that he was a member of the
Insane Deuces on January 9, 1998, and several members of
the gangBincluding defendantBwere at his home that evening.
Between 8:30 and 9 p.m. that day, the group was notified that
there were some AStones@ in a park near Rodriguez=s home.
The group, including defendant and a person named ANelson,@
went to the park, where they saw some individuals playing
basketball. Defendant began to Athrow@ gang signs, indicating
his allegiance to the gang. When those playing basketball did
not respond, the group returned to Rodriguez=s home.
Back at Rodriguez=s home, defendant referred to the
individuals in the park as Apussies@ because they were afraid to
fight. Later that night, Rodriguez observed defendant in
possession of two chrome revolvers. Thereafter, defendant
began asking other gang members if they wanted to go with
him to the projects. Defendant and other members of the gang
left Rodriguez=s home between 12:30 and 1 a.m. When
Rodriguez next saw defendant it was approximately 3 a.m. At
that time, defendant announced to Rodriguez that he was a
AStone killer,@ and he indicated he had shot someone that
evening. Rodriguez identified Nelson as a Achief@ of the gang,
and defendant as the Achief enforcer.@ He explained that the
role of the chief enforcer was to enforce the chief=s decisions.
Charles Oberlin testified that he was a member of the
Insane Deuces in January of 1998, and he knew defendant as
the Achief enforcer@ of that gang. Around 3 or 4 a.m. on
January 10, 1998, Oberlin saw defendant in possession of a
chrome gun, and defendant indicated that he had fired the
weapon. Oberlin described his own position in the gang
hierarchy at the time as that of an Aold-G,@ or elder. Oberlin
explained that his position was above that of Afoot soldiers,@ but
below the chief enforcers, the chief and the vice-president.
During closing argument, the prosecutor argued that
defendant was the Achief enforcer@ of the Insane Deuces and
killed Marcus Lee because he thought Lee was Aa Stone.@ The
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jury found defendant guilty of first degree murder. Juror Gomez
served as the foreperson of the jury.
At a subsequent hearing, the circuit court denied
defendant=s posttrial motion and proceeded to sentencing. The
State argued that an extended-term sentence was warranted
because the murder was committed in a brutal and heinous
manner indicative of wanton cruelty (see 730 ILCS
5/5B5B3.2(b)(2) (West 2000)) and defendant was a leader in
the Insane Deuces street gang and the murder was related to
the gang=s activities (see 730 ILCS 5/5B5B3.2(b)(8) (West
2000)). Defense counsel argued that the murder was not
committed in a brutal and heinous manner and, though all the
witnesses referred to defendant as the Achief enforcer@ of the
gang, Ait was not clearly shown that defendant was a leader,
motivator or supervisor@ of the gang. The circuit court
determined that an extended-term sentence was warranted,
stating:
AI further find that [defendant] was indeed a chief
enforcer of the Insane Deuces gang, *** and a weapon
was obtained at his direction and a search for rival gang
members was then had.@
Continuing, the court concluded, AIt was a senseless, brutal
killing and I feel that under the circumstances this was a gang
incident, gang motivated at the direction of this defendant.@ The
circuit court apparently accepted the State=s contentionBnow
discreditedB that the principles of Apprendi do not apply
because the sentencing range for first degree murder is
Atwenty to death by lethal injection.@ See People v. Swift, 202
Ill. 2d 378, 392 (2002) (sentencing range for first degree
murder in Illinois is 20 to 60 years= imprisonment). The circuit
court sentenced defendant to an extended-term sentence of 85
years in the Illinois Department of Corrections.
Thereafter, defendant filed a motion to reconsider sentence.
At the hearing on that motion, defense counsel argued that
Apprendi requires a jury to find the factors enabling the
imposition of an extended-term sentence. Counsel also argued
that defendant was not in a leadership position within the gang,
as required by the statute, because his place in the gang
hierarchy places him below Athe chief@ and required him to
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carry out the chief=s orders. The circuit court persisted in its
prior ruling and denied the motion for reconsideration.
Defendant appealed.
A divided appellate panel affirmed the judgment of the
circuit court. The court was united in holding that a Atrial court
has standing to act on behalf of a juror subject to discriminatory
jury selection practices.@ 348 Ill. App. 3d at 176. The appellate
court cautioned that the trial court has a right to raise Batson
objections sua sponte, but it has no corresponding duty to do
so. 348 Ill. App. 3d at 176.
Relying upon this court=s opinion in People v. Hudson, 157
Ill. 2d 401 (1993), the appellate majority found it unnecessary
to Aconsider whether combined race-gender discrimination can
be used to establish a prima facie case under Batson.@ 348 Ill.
App. 3d at 177. The majority cited this court=s opinion in
Hudson for the general proposition that Aonce the trial court
rules on the ultimate question of discrimination the question of
whether a prima facie case had been established is moot,@ and
thus the majority rejected the dissent=s argument that the
Amatter should be remanded for a hearing on whether a prima
facie case existed.@ 348 Ill. App. 3d at 177. The appellate
majority observed, Abecause the trial court=s determination [on
the prima facie issue] is based on its own observations, the first
stage of the Batson inquiry will necessarily collapse.@ 348 Ill.
App. 3d at 178. The majority recognized that Aallowing a trial
court to sua sponte raise a Batson issue creates the potential
for abuse@; however, the court majority rejected the dissent=s
call for the trial court to make a record and Aarticulate the basis
for the perceived Batson violation@ as Aa meaningless rhetorical
exercise@ and Amindless adherence to the three-step analysis
of Batson.@ 348 Ill. App. 3d at 178. The appellate majority then
noted that Agreat deference@ is accorded the trial court=s
ultimate determination on review (348 Ill. App. 3d at 178, citing
People v. Harris, 206 Ill. 2d 1, 17 (2002)) and concluded that
the trial court, Aweigh[ing] the credibility of defense counsel=s
explanation@ for defendant=s peremptory challenge, Acould
rationally find a motive to discriminate against African-
Americans, women, or both groups simultaneously.@ 348 Ill.
App. 3d at 178-79.
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Justice Gallagher, specially concurring, acknowledged that
Ait is arguable that the excusal did not constitute a pattern of
strikes against African-Americans, since defense counsel also
excused a white male and a white female@; however, he
believed there was at least Aan inference of purposeful
discrimination.@ (Emphasis in original.) 348 Ill. App. 3d at 182
(Gallagher, J., specially concurring). Justice Gallagher stated,
A[I]t is inferable that the court believed that a prima facie case
was established when defense counsel excluded a second
African-American.@ The justice concluded, AWhether one
agrees or disagrees is not the point. The point is that step one
of the Batson process was followed.@ 348 Ill. App. 3d at 182
(Gallagher, J., specially concurring).
Presiding Justice Frossard, dissenting, disagreed, arguing
that the trial court improperly Acollapsed what ought to be a
three-step procedure into an undifferentiated review of the jury
selection process.@ 348 Ill. App. 3d at 183 (O=Mara Frossard,
P.J., dissenting). Presiding Justice O=Mara Frossard noted that
the record in this case fails to reflect that the trial court
examined relevant factors bearing upon the establishment of a
prima facie case of discrimination. 348 Ill. App. 3d at 183
(O=Mara Frossard, P.J., dissenting). Presiding Justice O=Mara
Frossard argued that AHudson is not determinative in the
factual context of this case, where a trial judge sua sponte
raised a reverse-Batson violation and bypassed any
determination of a prima facie case by requesting race-neutral
explanations from defense counsel for his peremptory
challenge.@ 348 Ill. App. 3d at 185 (O=Mara Frossard, P.J.,
dissenting). The dissent observed that the Atrial judge=s failure
to make a record of the prima facie case regarding this
uncommon sua sponte reverse-Batson challenge makes
proper review of the Batson ruling impossible.@ 348 Ill. App. 3d
at 185 (O=Mara Frossard, P.J., dissenting).
Presiding Justice O=Mara Frossard also pointed out that the
majority failed to address defendant=s argument that Batson is
not applicable to combined race-gender discrimination,
suggesting that the majority=s resort to our opinion in Hudson
did not obviate the need to determine whether the trial court
ultimately based its rejection of defendant=s peremptory
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challenge on its perception of combined race-gender
discrimination. 348 Ill. App. 3d at 186 (O=Mara Frossard, P.J.,
dissenting). The dissent correctly observes that this court has
held the Afocus of Batson is on the exclusion of members of a
single identifiable group, not of different groups considered
together@ (348 Ill. App. 3d at 186 (O=Mara Frossard, P.J.,
dissenting), citing People v. Harris, 164 Ill. 2d 322, 344 (1994)),
and an appellate panel has actually held that Batson does not
apply Ato alleged combined race-gender discrimination.@ 348 Ill.
App. 3d at 186 (O=Mara Frossard, P.J., dissenting), citing
People v. Washington, 257 Ill. App. 3d 26, 34 (1993). We note
in passing that this court mentioned the appellate court=s
disposition in Washington in the course of our opinion in Harris,
citing the appellate court=s holding as an analogous proposition
lending support to our own decision, Adeclin[ing] *** to expand
the Batson rule to embrace the simultaneous consideration of
different racial or ethnic groups.@ See Harris, 164 Ill. 2d at 344.
Presiding Justice O=Mara Frossard concluded:
A[T]he trial court=s failure to articulate the
circumstances that demonstrate a prima facie case of
purposeful discrimination leaves unanswered the
question of whether the court=s finding a Batson
violation was based on combined race-gender
discrimination. The trial judge, by collapsing the Batson
stages and failing to make findings of fact to clarify the
record regarding the relevant circumstances
demonstrating a prima facie case of purposeful
discrimination, has made proper review of this
race-gender issue impossible.@ 348 Ill. App. 3d at 186
(O=Mara Frossard, P.J., dissenting).
Citing the procedure this court sanctioned in People v. Garrett,
139 Ill. 2d 189, 194 (1990), Presiding Justice O=Mara Frossard
would have retained jurisdiction and remanded Afor a three-
step Batson hearing on the present record and any additional
record the trial court or parties decide to make.@ 348 Ill. App. 3d
at 187 (O=Mara Frossard, P.J., dissenting). If the circuit court
then found a Batson violation, Presiding Justice O=Mara
Frossard would have required the circuit court to clarify the
nature of the violation, i.e., race, gender, or combined race-
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gender discrimination. 348 Ill. App. 3d at 187 (O=Mara
Frossard, P.J., dissenting).
Unlike the Batson issue, there was no separate opinion
written with respect to defendant=s Apprendi issue. The
appellate court held that an Apprendi violation had occurred
because the judgeBrather than the juryBfound the facts
necessary to extend the sentencing range applicable to
defendant. 348 Ill. App. 3d at 179-80. However, relying upon
this court=s decisions in Swift and People v. Thurow, 203 Ill. 2d
352, 363 (2003), the appellate court determined that Aan
Apprendi violation may be subject to a plain-error or harmless-
error analysis@ (348 Ill. App. 3d at 180) and ultimately
concluded, based on the uncontested evidence of defendant=s
position in the gang hierarchy, that the Apprendi violation was
harmless error. 348 Ill. App. 3d at 181. Finally, the court
rejected defendant=s contention that the Illinois Constitution
affords greater protection than its federal counterpart,
concluding:
A[W]e find nothing in defendant=s discussion of the history of
criminal defendants= right to a jury trial in Illinois that
compels us to break lockstep and conclude that the
harmless-error analysis of Thurow is impermissible under
the Illinois Constitution.@ 348 Ill. App. 3d at 181.
ANALYSIS
We begin our analysis with a review of the function of
peremptory challenges in our judicial system and of relevant
principles articulated by the United States Supreme Court in
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69,106 S. Ct.
1712 (1986), and other pertinent cases.
In Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S.
Ct. 824 (1965), the Supreme Court stated that the peremptory
challenge is A >one of the most important of the rights secured
to the accused= @ in our criminal justice system because the
challenge eliminates Aextremes of partiality on both sides@ and
assures the parties that the case will be decided on the basis
of evidence placed before the jurors. Swain, 380 U.S. at 219,
13 L. Ed. 2d at 772, 85 S. Ct. at 835, quoting Pointer v. United
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States, 151 U.S. 396, 408, 38 L. Ed. 208, 214, 14 S. Ct. 410,
414 (1894). See also People v. Daniels, 172 Ill. 2d 154, 165
(1996) (relying upon the foregoing proposition).
In Batson, the Supreme Court again acknowledged the
important role peremptory challenges occupy in our trial
procedures and held, as a constitutional matter, that
peremptory challenges may not be used to exclude potential
jurors based solely on race. Batson, 476 U.S. at 98-99, 90 L.
Ed. 2d at 89, 106 S. Ct. at 1724. The Court, in Batson, held
that a prosecutor cannot utilize peremptory challenges to
excuse potential jurors solely on the basis of their race. Batson,
476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719. In
Batson, the defendant and the potential juror in question
shared the same racial characteristics.
Subsequently, in Powers v. Ohio, 499 U.S. 400, 402, 113 L.
Ed. 2d 411, 419, 111 S. Ct. 1364, 1366 (1991), the Court held
that a defendant in a criminal trial has standing to challenge the
State=s use of peremptory challenges to exclude prospective
jurors on account of their race irrespective of whether the
defendant and the excluded jurors share the same racial
characteristics. In so holding, the Court determined that a
litigant may raise a claim on behalf of a third party if the litigant
can demonstrate that he has suffered a concrete injury, that he
has a close relation to the third party, and there exists some
hindrance to the third party=s ability to protect its own interests.
Powers, 499 U.S. at 410-11, 113 L. Ed. 2d at 425, 111 S. Ct. at
1370-71. The Court found that jurors have rights under its
Batson jurisprudence, stating, although A[a]n individual juror
does not have a right to sit on any particular petit jury, *** he or
she does possess the right not to be excluded from one on
account of race.@ Powers, 499 U.S. at 409, 113 L. Ed. 2d at
424, 111 S. Ct. at 1370. Speaking of discriminatory jury-
selection practices, the Court stated: AThe overt wrong, often
apparent to the entire jury panel, casts doubt over the
obligation of the parties, the jury, and indeed the court to
adhere to the law throughout the trial of the cause.@ (Emphasis
added.) Powers, 499 U.S. at 412, 113 L. Ed. 2d at 426, 111 S.
Ct. at 1371. The Court concluded that the defendant was a
proper party to raise a violation of a juror=s rights under Batson.
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Two justices of the Court were not of the belief that jurors
actually possess rights in the jury-selection process which are
independent of the rights of the parties. See Powers, 499 U.S.
at 417-31, 113 L. Ed. 2d at 429-39, 111 S. Ct. at 1374-82
(Scalia, J., dissenting, joined by Rehnquist, C.J.). In dissent,
Justice Scalia wrote:
ATo affirm that the Equal Protection Clause applies
to strikes of individual jurors is effectively to abolish the
peremptory challenge. *** Not only is it implausible that
such a permanent and universal feature of our jury-trial
system is unconstitutional, but it is unlikely that its
elimination would be desirable. The peremptory
challenge system has endured so long because it has
unquestionable advantages. As we described in
Holland, 493 U.S. at 484, it is a means of winnowing out
possible (though not demonstrable) sympathies and
antagonisms on both sides, to the end that the jury will
be the fairest possible. In a criminal-law system in which
a single biased juror can prevent a deserved conviction
or a deserved acquittal, the importance of this device
should not be minimized.@ Powers, 499 U.S. at 425, 113
L. Ed. 2d at 434-35, 111 S. Ct. at 1378 (Scalia, J.,
dissenting, joined by Rehnquist, C.J.).
Subsequently, the Court again focused on the equal
protection rights of excluded jurors in its decision in Georgia v.
McCollum, 505 U.S. 42, 120 L. Ed. 2d 33, 112 S. Ct. 2348
(1992). In McCollum, the Court held that the constitution
prohibits not only the prosecution, but also a criminal
defendant, from engaging in purposeful racial discrimination in
the exercise of peremptory challenges. McCullom, 505 U.S. at
59, 120 L. Ed. 2d at 51, 112 S. Ct. at 2359. In so holding, the
Court recognized the State=s standing to attack the defendant=s
use of peremptory challenges on racial grounds, observing
that, A[a]s the representative of all its citizens, the State is the
logical and proper party to assert the invasion of the
constitutional rights of the excluded jurors in a criminal trial.@
McCollum, 505 U.S. at 56, 120 L. Ed. 2d at 49, 112 S. Ct. at
2357.
-15-
In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed.
2d 89, 114 S. Ct. 1419 (1994), the Supreme Court again
extended the reasoning, prohibitions, and procedures of
Batson, this time to peremptory strikes based on gender.
Reminiscent of the analysis employed in Powers and
McCullom, the Court in J.E.B. stated: ADiscrimination in jury
selection, whether based on race or on gender, causes harm to
the litigants, the community, and the individual jurors who are
wrongfully excluded from participation in the judicial process.@
J.E.B., 511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct. at
1427. The Court pointedly observed that the A[d]iscriminatory
use of peremptory challenges may create the impression that
the judicial system has acquiesced in suppressing full
participation by one gender.@ J.E.B., 511 U.S. at 140, 128 L.
Ed. 2d at 104, 114 S. Ct. at 1427.
Five justices wrote or subscribed to separate opinons in
J.E.B., either concurring and expressing concerns, or
dissenting outright. Justice O=Connor, concurring in the
judgment, expressed her concerns over the proliferation of
ABatson minihearings@ in the state and federal trial courts, and
over the further erosion of the role of the peremptory challenge,
which she acknowledged to be a valuable practice that Ahelps
produce fair and impartial juries.@ J.E.B., 511 U.S. at 147, 128
L. Ed. 2d at 108, 114 S. Ct. at 1431 (O=Connor, J., concurring).
Justice Kennedy, who also concurred in the judgment,
expressed this perplexing cautionary concern: AWe do not
prohibit racial and gender bias in jury selection only to
encourage it in jury deliberations. Once seated, a juror should
not give free rein to some racial or gender bias of his or her
own.@ J.E.B., 511 U.S. at 153, 128 L. Ed. 2d at 112, 114 S. Ct.
at 1434 (Kennedy, J., concurring). Justice ScaliaBwith whom
Chief Justice Rehnquist and Justice Thomas joined in
dissentBexpressed his view that the Batson principle is
Atheoretically boundless@ (J.E.B., 511 U.S. at 161, 128 L. Ed.
2d at 117, 114 S. Ct. at 1438 (Scalia, J., dissenting, joined by
Rehnquist, C.J., and Thomas, J.)), he reiterated his criticism of
the Auniquely expansive third-party standing analysis of
Powers@ (J.E.B., 511 U.S. at 158-59, 128 L. Ed. 2d at 115-16,
114 S. Ct. at 1437 (Scalia, J., dissenting, joined by Rehnquist,
-16-
C.J., and Thomas, J.)), and he offered the following analysis of
the equal protection issue:
AThe core of the Court=s reasoning is that
peremptory challenges on the basis of any group
characteristic subject to heightened scrutiny are
inconsistent with the guarantee of the Equal Protection
Clause. That conclusion can be reached only by
focusing unrealistically upon individual exercises of the
peremptory challenge, and ignoring the totality of the
practice. Since all groups are subject to the peremptory
challenge (and will be made the object of it, depending
upon the nature of the particular case) it is hard to see
how any group is denied equal protection.@ J.E.B., 511
U.S. at 159, 128 L. Ed. 2d at 116, 114 S. Ct. at 1437
(Scalia, J., dissenting, joined by Rehnquist, C.J., and
Thomas, J.).
Suffice it to say that the expansion of the Batson principle, and
the correlative, creeping circumscription of peremptory
challenges, has not proceeded without misgivings and dissent
among the justices of the Supreme Court.
We turn now to the procedure the Court established to
effectuate the Batson principle. In Batson, the Supreme Court
established a three-step process for evaluating alleged
discrimination in jury selection. The Court held that the party
objecting to the exercise of a peremptory challenge is first
required to establish a prima facie case of purposeful
discrimination Aby showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.@ See
Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at
1721. If the objector demonstrates a prima facie case, the
burden then shifts to the other party to explain his challenge by
articulating a nondiscriminatory, Aneutral@ explanation related to
the particular case to be tried. Batson, 476 U.S. at 97-98, 90 L.
Ed. 2d at 88, 106 S. Ct. at 1723-24. Finally, the trial court
considers the reasons provided for the peremptory strike. As
part of that process, the objector may argue that the reasons
given are pretextual. The trial court then makes a final
determination as to whether the objector has established
-17-
purposeful discrimination. Batson, 476 U.S. at 98, 90 L. Ed. 2d
at 88- 89, 106 S. Ct. at 1724.
In the course of implementing the principles and procedures
of Batson, this court has repeatedly cautioned that the first and
second steps in the process Ashould not be collapsed into a
single, unitary disposition that dilutes the distinctions between a
*** prima facie showing of discrimination and the *** production
of neutral explanations for its peremptory challenges.@ People
v. Wiley, 156 Ill. 2d 464, 475 (1993); see also People v.
Jackson, 145 Ill. 2d 43, 98 (1991) (warning trial courts not to
omit the first step in the Batson analysis altogether), vacated
on other grounds, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32
(1992); People v. Garrett,139 Ill. 2d 189, 201 (1990). Accord
Purkett v. Elem, 514 U.S. 765, 767-68, 131 L. Ed. 2d 834, 839,
115 S. Ct. 1769, 1770-71 (1995).
In Batson, the Supreme Court stated that courts should
consider Aall relevant circumstances@ in deciding whether a
party has made the requisite showing of a prima facie case.
Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at
1723. This court has held, in determining whether the objector
has demonstrated purposeful discrimination against African-
Americans at the prima facie stage, a trial judge should
consider, inter alia, the following relevant factors:
A(1) racial identity between the [party exercising the
peremptory challenge] and the excluded venirepersons;
(2) a pattern of strikes against African-American
venirepersons; (3) a disproportionate use of peremptory
challenges against African-American venirepersons; (4)
the level of African-American representation in the
venire as 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.@ People v. Williams, 173 Ill. 2d 48, 71 (1996).
-18-
The list of factors would obviously be modified appropriately to
address claims of purposeful discrimination directed at other
protected groups.
The party attempting to exercise a peremptory challenge is
not required to provide race-neutral reasons for the exercise of
its peremptory challenge if a prima facie case of purposeful
racial discrimination has not been demonstrated. See Batson,
476 U.S. at 97, 90 L. Ed. 2d at 88,106 S. Ct. at 1723. A ruling
on the sufficiency of a prima facie case of purposeful
discrimination is a finding of fact that will not be reversed
unless it is against the manifest weight of the evidence. People
v. Coleman, 155 Ill. 2d 507, 514 (1993).
As this court has noted, a trial court=s third stage finding on
the ultimate issue of discrimination rests largely on credibility
determinations. McDonnell v. McPartlin, 192 Ill. 2d 505, 527
(2000). Consequently, the trial court=s finding is entitled to
Agreat deference@ and will not be set aside unless clearly
erroneous. McDonnell, 192 Ill. 2d at 527; People v. Munson,
171 Ill. 2d 158, 175 (1996). As the Supreme Court observed in
Hernandez v. New York, 500 U.S. 352, 365, 114 L. Ed. 2d 395,
409, 111 S. Ct. 1859, 1869 (1991), there will seldom be much
evidence bearing upon the ultimate question of discrimination
and the Abest evidence often will be the demeanor of the
attorney who exercises the challenge.@ The evaluation of the
attorney=s state of mind is most often Abased on demeanor and
credibility@ and thus Alies >peculiarly within the trial judge=s
province.= @ Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409,
111 S. Ct. at 1869, quoting Wainwright v. Witt, 469 U.S. 412,
428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854 (1985). As the
Supreme Court acknowledged in Hernandez, the credibility of
the attorney=s explanation Agoes to the heart of the equal
protection analysis, and once that has been settled, there
seems nothing left to review.@ (Emphasis added.) Hernandez,
500 U.S. at 367, 114 L. Ed. 2d at 410, 111 S. Ct. at 1870.
With these principles in mind, we turn to the question of the
trial court=s standing and authority to raise a Batson issue sua
sponte. Applying the Supreme Court=s three criteria for
standing, and our own state principles, it seems clear to us that
trial courts possess such authority.
-19-
First, the Supreme Court=s pronouncements dictate the
conclusion that a trial court suffers an injury as significant as
either of the parties when discrimination takes place in jury
selection. In Powers, the Court explicitly stated that the Aovert
wrong@ of discrimination in jury selection Acasts doubt over the
obligation of *** the court to adhere to the law throughout the
trial of the cause.@ Powers, 499 U.S. at 412, 113 L. Ed. 2d at
426, 111 S. Ct. at 1371. In J.E.B., the Court observed that the
A[d]iscriminatory use of peremptory challenges may create the
impression that the judicial system has acquiesced in
suppressing full participation@ by the aggrieved juror. J.E.B.,
511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct. at 1427. In
short, perceived discrimination in jury selection reflects
negatively on the integrity of the judge who presides over the
proceedings.
Second, as the appellate court in this case observed, Athe
relationship between the trial court and the jury is even closer
than the relationship between the parties and the jury.@ 348 Ill.
App. 3d at 175. As the appellate court noted: AThe trial court
and the jury are the only participants in the trial duty bound to
act impartially, and the jury relies on the trial court for its
instructions ***.@ 348 Ill. App. 3d at 175. Indeed, the jurors look
to the trial judge as the overseeing authority and impartial
arbiter of the proceedings, and the judge is the only participant
in the trial who will supervise and direct their activities while
they serve as jurors. As a practical matter, the presiding judge
is an authority figure for those who serve as jurors. Thus, we
find that the second criterion for standing has been satisfied.
Finally, the Supreme Court has already found that the third
criterionBhindrance to the third party=s ability to protect its own
interestsBexists in this context. In Powers, the Court concluded:
A[T]here exist considerable practical barriers to suit by the
excluded juror because of the small financial stake involved
and the economic burdens of litigation. [Citations.] The reality
is that a juror dismissed because of race probably will leave the
courtroom possessing little incentive to set in motion the
arduous process needed to vindicate his own rights.@ Powers,
499 U.S. at 415, 113 L. Ed. 2d at 428, 111 S. Ct. at 1373.
-20-
Thus, Supreme Court precedent supports our conclusion that a
trial court has the standing to raise a Batson issue sua sponte.
Moreover, this court has held that courts possess the
inherent power Ato enable them to perform their judicial
functions with *** dignity.@ People ex rel. Bier v. Scholz, 77 Ill.
2d 12, 19 (1979). Since the A[d]iscriminatory use of peremptory
challenges may create the impression that the judicial system
has acquiesced in suppressing full participation@ of potential
jurors (J.E.B., 511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct.
at 1427), it follows that the trial judge should have the means to
preserve the dignity of his or her office. Furthermore, this court
has held that a trial court has the rightBthough not the dutyBto
remove a juror for cause. See People v. Metcalfe, 202 Ill. 2d
544, 557 (2002). Granting trial courts the authority to raise
Batson issues sua sponte is merely a logical extension of the
powers circuit courts already possess. Thus, we conclude that
a trial court has the authority to raise a Batson issue sua
sponte in appropriate circumstances.
Our holding in this regard is consistent with the conclusion
reached by courts of other jurisdictions. See Hitchman v. Nagy,
382 N.J. Super. 433, 889 A.2d 1066 (2006); People v. Bell, 473
Mich. 275, 702 N.W.2d 128 (2005); State v. Evans, 100 Wash.
App. 757, 998 P.2d 373 (2000); Commonwealth v. Carson, 559
Pa. 460, 741 A.2d 686 (1999); Williams v. State, 669 N.E.2d
1372 (Ind. 1996); Brogden v. State, 102 Md. App. 423, 649
A.2d 1196 (1994); Lemley v. State, 599 So. 2d 64 (Ala. Crim.
App. 1992). However, as the court observed in Hitchman,
courts so holding have generally been careful to insist upon a
clear indication of a prima facie case of purposeful
discrimination before trial courts are authorized to act.
Hitchman, 382 N.J Super. at 444-47, 889 A.2d at 1072-74. We
agree that a prima facie case of discrimination must be
abundantly clear before a trial court acts sua sponte. Moreover,
when a trial court chooses to act sua sponte, it must make an
adequate record, consisting of all relevant facts, factual
findings, and articulated legal bases for both its finding of a
prima facie case and for its ultimate determination at the third
stage of the Batson procedure.
-21-
In this regard, we reject the appellate majority=s reliance
upon a general statement from this court=s opinion in People v.
Hudson, 157 Ill. 2d 401, 427-28 (1993), as a means to avoid
consideration of Awhether combined race-gender discrimination
can be used to establish a prima facie case under Batson.@ 348
Ill. App. 3d at 176-77. The appellate majority concluded that
Aonce the trial court rules on the ultimate question of
discrimination, the question of whether a prima facie case had
been established is moot.@ 348 Ill. App. 3d at 177, citing
Hudson, 157 Ill. 2d at 427. Such a statement does indeed
appear in Hudson, on more than one occasion; however, the
statement has been taken out of its original context, and it does
not comport with the procedural requirements we hereby adopt
when a trial court acts sua sponte to raise a Batson issue.
In Hudson, this court quoted from the Supreme Court=s
opinion in Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d
395, 111 S. Ct. 1859 (1991): A >Once a prosecutor has offered
a race-neutral explanation for the peremptory challenges and
the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant
had made a prima facie showing becomes moot.= @ Hudson,
157 Ill. 2d at 427, quoting Hernandez, 500 U.S. at 359, 114 L.
Ed. 2d at 405, 111 S. Ct. at 1866. We later observed: A[T]his
court has recently held that once the trial court rules on the
ultimate question of discrimination, the question of whether the
defendant established a prima facie case became moot.
People v. Mitchell (1992), 152 Ill. 2d 274, 289-90.@ Hudson,
157 Ill. 2d at 427-28. This court then concluded its discussion
of the issue, stating, APursuant to Hernandez, the question of
whether defendant in the instant case established a prima facie
case of discrimination became moot when the trial court found
the State=s explanations were valid.@ (Emphasis added.)
Hudson, 157 Ill. 2d at 428. Similarly, in Mitchell, this court cited
Hernandez in support of its conclusion that Athe question of
whether defendant established a prima facie case of racial
discrimination became moot when the trial court found that the
prosecutor=s explanations for the challenges were valid and
neutral.@ (Emphasis added.) Mitchell, 152 Ill. 2d at 289. Indeed,
in Hernandez, the reasons given by the prosecutor were also
-22-
deemed valid and neutral. Hernandez, 500 U.S. at 372, 114 L.
Ed. 2d at 414, 111 S. Ct. at 1873.
Clearly, whether a prima facie case of discrimination exists
at the outset becomes a moot point after the trial court finds
valid and race-neutral reasons supporting the peremptory
challenge and a court of review ultimately affirms that ruling.
The party exercising a peremptory challenge suffers no
prejudice in that instance because the juror in question is
excused pursuant to that party=s original challenge. The
converse, however, is not true. Where a prima facie case does
not exist, a party whose challenge is ultimately denied is
prejudiced, because the matter should not have been
advanced to the second step of the Batson process, and he
should never have been compelled by the trial court to offer
justification for his challenge in the first place. By definition, a
Aprima facie case@ entails A[t]he establishment of a legally
required rebuttable presumption@ or A[a] party=s production of
enough evidence to allow the fact-trier to infer the fact at issue
and rule in the party=s favor.@ Black=s Law Dictionary 1228 (8th
ed. 2004). In every procedural context wherein a prima facie
case is required, the party with the burden of establishing a
prima facie case must first meet its burden in order to advance
the litigation to subsequent stages and, ultimately, to be
entitled to relief. See generally People v. Orth, 124 Ill. 2d 326,
338 (1988) (ASince the [initial] burden was upon the
[suspended] motorist [to present a prima facie case for
rescission], the circuit court erred: first, by requiring the State to
go forward with evidence justifying the suspension, and,
second, by rescinding the suspension even though the motorist
had not presented any evidence for rescission@). The burden of
establishing a prima facie case of purposeful discrimination in
jury selection is on the party making the Batson claim.
McDonnell v. McPartlin, 192 Ill. 2d 505, 526 (2000). It defies
procedural logic that proof of a prima facie case could be
insufficient to advance the Batson process to the second and
third steps; yet, the party attempting to exercise its challenge
could ultimately lose when the matter is erroneously advanced
to the subsequent stages. Therefore, when a party is ultimately
denied its right to exercise a peremptory challenge, we hold
-23-
that matters bearing upon the first stage of the Batson process
are properly within the scope of appellate review and not moot.
Comprehensive appellate review of Batson proceedings,
and adequate records and findings enabling such a review, are
critical when a trial court decides to raise a Batson claim sua
sponte. There are at least three reasons why this is so. First, a
litigant objecting to an opposing party=s peremptory challenge,
as the party making the Batson claim, would normally have the
burden of establishing a prima facie case of discrimination, and
the ultimate burden of establishing purposeful discrimination.
See McDonnell, 192 Ill. 2d at 526. When the trial court acts sua
sponte, it relieves a litigant of those burdens. Second, when a
trial court acts sua sponte, it necessarily means that the
opposing partyBin this case the StateBhas failed to act. The
evidentiary implications associated with that inaction are not
conclusive, but they are nonetheless cause for concern.
Inaction may suggest that the opposing party did not perceive
circumstances indicating purposeful discrimination, which in
some instances may indicate that no such circumstances exist.
In that situation, articulation of the bases for the trial court=s
finding is essential, because the normal adversarial process
will not provide the requisite bases and record. Finally, without
an adequate record, consisting of all relevant facts, factual
findings, and articulated legal bases for both the trial court=s
finding of a prima facie case and its ultimate determination at
the third stage of the Batson procedure, the trial court=s rulings
may be virtually immune from appellate review. If, for example,
we were to holdBas the appellate court didBthat the existence
of a prima facie case is a moot point, we would not be able to
review the circuit court ruling that required defense counsel to
justify his peremptory challenge of Gomez. Once that
procedural frontier is crossed, the outcome of the Batson
inquiry then hinges upon whatever facts the trial court has
deigned to provide for us and, more importantly, whether the
trial court finds counsel=s explanation for the peremptory
challenge credible and benign. As the Supreme Court noted in
Hernandez, evaluation of the attorney=s state of mind is most
often Abased on demeanor and credibility@ and thus Alies
-24-
>peculiarly within the trial judge=s province= @ (Hernandez, 500
U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting
Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854,
105 S. Ct. 844, 854 (1985)), Aand once that has been settled,
there seems nothing left to review.@ (Emphasis added.)
Hernandez, 500 U.S. at 367, 114 L. Ed. 2d at 410, 111 S. Ct.
at 1870. Thus, the inability to review the propriety of a trial
court=s first-stage Batson ruling, combined with the problems
associated with sua sponte action and a deficient record on
appeal, might well result in a decision that is for all intents and
purposes unreviewable, giving trial courts carte blanche to
applyBor misuseBthe principles of Batson in any way they wish.
That specter is the impetus for the procedural requirements we
adopt today. Indeed, strict adherence to the three-step
procedure specified by the Supreme Court would seem to be
the surest way to guarantee compliance with Batson principles.
We now examine the pertinent portions of the record in this
case. During defense counsel=s brief preliminary questioning of
juror Gomez, counsel inquired about Gomez=s employment
with an out-patient clinic of Cook County Hospital. Gomez
acknowledged that Cook County Hospital is known for the
treatment of gunshot victims and, as a part of her employment
at the clinic, she has contact with patients, Achecking them in.@
When defense counsel sought to excuse Gomez, the trial
judge raised the Batson issue, and compelled defense counsel
to Aarticulate a basis@ for the peremptory challenge, without any
mention of a prima facie case of discrimination or of any facts
bearing upon that issue. It was only after defense counsel had
begun to state the nondiscriminatory basis for his
challengeBGomez=s connection to the clinic and victims of
violent crimeBthat the court interrupted, noting that AMrs.
Deloris Gomez appears to be an African American.@ When
counsel observed that he had previously accepted an African-
American woman to sit on the jury, the court quickly pointed
out that Gomez was the second African-American woman that
the defense had sought to exclude. The court also stated it was
counsel=s articulated reason for the peremptory challenge that
was of particular concern. Obviously, the articulated reason for
a challenge is a matter of Aconcern@ only after a prima facie
-25-
case has been established. The existence of a prima facie
case is a prerequisite for the court to demand an explanation.
In any event, the court then stated for the record, AIf the State
in fact had done this, I certainly would have found they would
have established a prima facie case by the very reasonBwhat
I=m going to do is allow Ms. GomezBallow her to be seated, not
excuse her on the basis of your peremptory.@ It is telling that
the trial court never explained Athe very reason@ it believed a
prima facie case of discrimination existed. The court simply
stated, AI feel under these circumstances the reasons given by
you, Mr. Decker, do not satisfy this Court. As far as I=m
concerned, it=s more than a prima facie case of discrimination
against Mrs. Gomez. I=m not going to allow her to be excused.@
Defense counsel then asked for, and was granted, leave to
conduct further questioning of Gomez. In the course of that
questioning, Gomez conceded that some of the patients she
interacts with are Avictims of gun violence@; however, she
maintained that fact would not affect her ability to be fair. After
questioning Gomez, defense counsel explained that he was
Anot trying to excuse a juror because of her race.@ Counsel
then stated that one consideration was his attempt to Aget
some impact from *** men in the case@ as the jury panel was
then composed of Apredominantly women.@ Counsel further
informed the court that he was familiar with the clinic where
Gomez worked and it was Awall to wall victims and patients.@
Counsel described it as Aa disturbing place.@ The court
responded: AI=ve had the opportunity to question Deloris
Gomez[,] who I find is a very intelligent lady. I considered her
statements very carefully, her testimony very carefully, and I
again feel that she shall sit as a juror.@ In view of the court=s
ruling, defense counsel then chose to exercise his fourth
peremptory challenge against Kurich. With respect to that
peremptory challenge, the judge responded, AWith reluctance, I
will allow it.@
Because the trial court did not state the basis for its finding
of prima facie discrimination, we do not know whether the trial
court believed the peremptory challenge defendant sought to
exercise against Gomez represented an instance of racial
discrimination, or gender discriminaton, or combined race-
-26-
gender discrimination. We do know that defendant had
exercised a peremptory challenge against an African-American
woman previously, and had accepted another African-
American woman for service on the jury. Morever, the record
indicates that defense counsel had previously exercised
peremptory challenges against Rosalee Huizenga and Thomas
Hickey, whose racial characteristics are not specified in the
record. In his opening brief, defendant states that Huizenga
Awas not a black woman and Thomas Hickey [was] a white
male.@ The State, in its own statement of facts, merely names
Huizenga and Hickey as persons who were excused by the
defense. The State does not dispute defendant=s
representation regarding their racial characteristics. In fact, in
arguing that the trial court did not act on the basis of perceived
race-gender discrimination, the State asserts that Athe trial
court=s remarks make it clear that the court=s sua sponte
reverse-Batson challenge was grounded solely on the race of
Ms. Gomez.@ The State=s argument in that respect necessarily
admits that Hickey was white, because, if he was not, the trial
court surely would have commented on the use of a
peremptory to excuse him, and it did not. Given the statements
of the parties and the court on the record, it is reasonable to
assume, at least, that Huizenga was not an African- American
woman, and Hickey was a white male.
Normally, the party asserting a Batson claim has the burden
of proving a prima facie case and preserving the record, and
any ambiguities in the record will be construed against that
party. People v. Evans, 186 Ill. 2d 83, 92 (1999); see also
People v. Furdge, 332 Ill. App. 3d 1019, 1031 (2002). Given
the requirements we impose today, when a trial court acts sua
sponte, the trial court must see to it that adequate facts are
preserved in the record to support its ruling, and the trial court
in this instance has not done so.
This court has held that the mere number of African-
American venirepersons peremptorily challenged, without
more, will not establish a prima facie case of discrimination.
People v. Heard, 187 Ill. 2d 36, 56 (1999); Garrett, 139 Ill. 2d at
203. Where a party claiming a Batson violation has not
provided any other information to support his claim of
-27-
discriminatory jury selection, he has failed to establish a prima
facie case. Heard, 187 Ill. 2d at 56. The number of persons
struck takes on meaning only when coupled with other
information such as the racial composition of the venire, the
race of others struck, or the voir dire answers of those who
were struck compared to the answers of those who were not
struck. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044
(11th Cir. 2005). As previously noted, in determining whether
the objector has demonstrated purposeful discrimination
against African-Americans at the prima facie stage, a trial
judge should consider the following relevant factors:
A(1) racial identity between the [party exercising the
peremptory challenge] and the excluded venirepersons;
(2) a pattern of strikes against African-American
venirepersons; (3) a disproportionate use of peremptory
challenges against African-American venirepersons; (4)
the level of African-American representation in the
venire as 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.@ People v. Williams, 173 Ill. 2d 48, 71 (1996).
We also note, when a Batson claim is made regarding
discrimination against a particular race, the unchallenged
presence of jurors of that race on the seated jury is a factor
properly considered (People v. Brown, 172 Ill. 2d 1, 35 (1996);
see People v. Martinez, 335 Ill. App. 3d 844, 854 (2002)) and
tends to weaken the basis for a prima facie case of
discrimination (Ochoa-Vasquez, 428 F.3d at 1044-45).
Examining the facts that are included in this record, in the
framework of the foregoing factors, we see no clear indication
of a prima facie case of racial discrimination. The only factor
that appears to weigh in favor of finding a prima facie case is
the fact that defendant is Hispanic and both the victim and
Gomez were African- American. Given the current state of the
record, we find that none of the other considerations supports
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the trial court=s apparent belief that a prima facie case existed.
First, we do not find an impermissible pattern of strikes against
African-Americans or a disproportionate use of peremptory
challenges against African-American venirepersons. We know
only that, prior to the attempt to strike Gomez, defense counsel
used peremptory challenges to strike one African-American
woman, but he also accepted one African-American woman for
service on the jury. Counsel also struck one woman who was
not African-American and a white male. It seems to us that for
this court to say that a pattern developed when defendant
attempted to strike a second African-American woman, we
would have to find that a pattern would have developed if
defendant had moved to strike a second woman who was not
of African-American heritage or a second white male. We do
not believe that inference is warranted or wise as it would
result in precedent that a pattern develops anytime a party
strikes more than one juror of any race or gender. Second, we
are unable to compare the level of African-American
representation in the venire with that of defendant=s juryBas
Illinois courts have done so effectively in prior cases (see
People v. Edwards, 301 Ill. App. 3d 966, 973-74
(1998))Bbecause the requisite information has not been made
a part of the record on appeal. Other than the African-
American woman accepted by defendant, we do not know the
race of any other members of the jury that convicted
defendant. Third, we do not find the questions or statements of
defense counsel particularly troubling prior to the time that the
trial court advanced the matter to the second stage of the
Batson procedure and demanded an explanation from counsel.
The questions asked by counsel pertained to Gomez=s
employment at a clinic and her contact with the victims of
violent crime. Defendant was on trial for a crime of violence.
We note in this regard that the Seventh Circuit Court of
Appeals has held that Aa challenge based on a juror=s social or
medical work is race-neutral and understandable@ in the
context of a criminal case. See United States v. Griffin, 194
F.3d 808, 826 (7th Cir. 1999), citing Coulter v. Gilmore, 155
F.3d 912, 919-20 (7th Cir. 1998). While defense counsel did,
eventually, make comments suggesting an impermissible
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gender-based motive for removing Gomez from jury service,
that remark was made after the court had already denied the
peremptory challenge, and it is unclear whether the factor had
a bearing on the court=s ruling as the basis for the court=s ruling
itself is uncertain. Finally, from this record, we are unable to
say that the African-Americans defendant sought to exclude
were a heterogeneous group sharing race as their only
common characteristic. In short, the record in its current state
does not reveal a prima facie case of racial discrimination, if
indeed thatBas opposed to race-gender discriminationBwas the
basis for the trial court=s sua sponte action.
In sum, we hold that a trial court may raise a Batson issue
sua sponte, but it may do so only when a prima facie case of
discrimination is abundantly clear. Moreover, the 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. The record in this case is
insufficient to demonstrate either a prima facie case of racial
discrimination or the bases for the trial court=s rulings.
Although we have previously warned circuit courts against
collapsing the Batson procedure, it was, perhaps, not clear
until today that the existence of a prima facie case of
discrimination would continue to be a relevant issue for
purposes of appeal where, as here, the circuit court ruled upon
the ultimate issue of discrimination, and decided that issue
adversely to the party attempting to exercise a peremptory
challenge. In this case, there may be evidence that was not
made a part of the record because the trial court believed that
the preliminary matter of a prima facie case would become
moot after it ruled on the third-stage issue.
In light of that possibility, we believe it is appropriate to
remand this cause to the circuit court for a limited hearing to
allow the trial judge an opportunity to articulate the bases for
his Batson rulings. We are particularly interested in findings of
fact and conclusions of law with respect to the threshold
question of a prima facie case of discrimination, and
clarification as to the kind of discrimination the trial judge
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believed to be in evidence when the defense sought to excuse
juror Gomez, i.e., race, gender, or combined race-gender. We
take judicial notice of the fact that the original trial judge, Judge Fiala, has
now retired from the bench. Given the unusual procedural circumstances of
this case, he may provide this information via affidavit if he so desires, pointing
to pertinent information already in the record, and identifying any physical
evidence not currently of record (such as juror questionnaires or profiles) that
the court and the parties utilized in the jury-selection process. We also offer
Judge Fiala an opportunity to explain his Areluctance@ to allow a subsequent
peremptory challenge against juror Kurich. In that respect, we note that a
defendant is entitled to an Aimpartial judge,@ meaning one who is not predisposed
to rule in a given manner. See People v. Williams, 124 Ill. 2d 300,
308 (1988). Following the reception of this evidence, the circuit court
shall file any supplemental record in this matter with the clerk of this court
within 60 days of the issuance of the mandate in this matter,
accompanied by a record of the proceedings on remand, and any request by the
parties to submit additional briefs or further argue issues pertaining to the
threshold question of a prima facie case of discrimination. After
proceedings on remand have been completed, and any
supplemental arguments have been considered, this court will
announce its judgment on any and all pending issues requiring
resolution at that time. See Garrett, 139 Ill. 2d at 195.
Cause remanded with directions.
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