mr shah was convicted after a jury trial of possession of a controlled substance cannabis cocaine as well as possession of cannabis he was sentenced to five years in prison on the cocaine conviction and to thirty days in jail on the cannabis conviction in the briefs i raise two issues requesting reversal in r established a sufficient provocation face of racial discrimination in the state's use of peremptory strikes to warrant a batson hearing i will start with that particular argument and i must confess i do so with sun trepidation because the law with regard to bats and versus kentucky i recognize is very difficult it's very confusing and i do not profess to have any particular expertise in that area of the law but the issue was raised i believe it's potentially important in this case and i'll do the best i can to try to outline basic principles and how they apply the facts of this case now we my understanding of the case law is that there is a preference for sending it back to the trial court to undertake the proper analysis if the reviewing court fin that the trial court did not engage in the proper analysis i think that's consistent with people versus davis e l and why supreme court decision from two thousand and eight and people versus rivera the two thousand and six decision  we know that under batson equal protection class forbids the state from challenging potential jurors solely on the basis of their race and the illinois supreme court in people vs andrews in one nine hundred ninety two  that the mere fact that some black bonaire persons eventually are impaneled on a black defendants jury does not necessarily resolve the batson issue if the state excludes even one black man your person based on that presented a sufficient prima facia case that the prosecutor exercised peremptory challenges on the basis of race people versus davis in two thousand and eight emphasize that the trial court must evaluate the the circumstances surrounding the peremptory challenge to determine whether the defendant has met that threshold case and in davy shaw's case at the point where the state used the per defense counsel objected and laid out those challenges at the point where the printer strikes were made and the moment the objection was made with regard to juror by them what should the trial judge of them  at that point basically engage in the seven rivera factors that are discussed in the brief and and also referred to in davis  think i believe that's that's correct under certain circumstances where the record bears out a trial court's careful consideration of the seven factors our position is the trial the record bears out that the trial court did did not carefully undertake the seven rivera factors the only thing the trial court mentioned was the pattern whether defense counsel had established a pattern and our position is both the prosecutor in the trial court got that wrong under davis and andrews davis and andrews clearly point out that depending upon the circumstances depending upon the makeup of the veneer and the facts known about the defendant as compared to the veneer at the point that the periphery strikes are made a pattern can be established with just one juror or just two jurors and interestingly enough at the time the print three strikes were made that's what happened here so basically my position is if you look at what defense counsel stated with regard to b stated she's the only black person on the panel so far she's a member of a cognizable racial group and the prosecutor has used a peremptory strike when the prosecutor used the strike against smith defense counsel clearly stated she's only the second black on this entire veneer every single other person has been white the prosecutor has now used against both blacks now i think it's arguable just given what counsel said there that the first for the rivera factors have already been established we know because the information that was filed on august tenth of i believe it was two thousand and nine identified the race of the defendant so we know from the record that everybody in that courtroom knew that mr shah was black so just if you take what the defense counsel said on the record we've established a racial identity between mr shaw and the excluded jurors a pattern of strikes against those yours disproportionate use of peremptory strikes against let's hand the fourth rivera factor three out of twenty eight blacks on the near zero out of twelfth on the jury that was enough i mean if you want to if you want to look at does the record support the private facie case i would argue it does but whether it does or not the only thing the judge talked about on the record anywhere including when she deny the ball struck motion in which defense counsel had raised the bats and challenged again the only thing the judge ever mentioned was there's not a pattern here and the judge we should determine based on the record whether or not there was a showing of a privatization showing of racial discrimination as a juror binah are you suggesting that because the trial court did not most certainly agree with the latter proposition that it's that it's it's proper to send it back to the trial court to develop the record i think the circuit court would have to articulate on the record that she had considered those factors for rivera or the other cases those factors and determined that there was no crime in place of showing of racial discrimination i would agree with that now having said that this this is where i get confused on the case law certainly rivera and davis that the illinois supreme court decisions that i rely very heavily on engaged in very fact specific detail oriented dunno will review of whether the seven factors existed but the reason why i the reason why i i believe that aphasia case but it's it's really unclear what the trial judge did here and to be fair to the trial judge let's send it back with a trial judge make a better record if that's possible and that's my and that's my understanding of the yes short answer yes and with regard to remanding back or the trial court to do that this was an october two thousand and twelve trial  is the framework that has been established by the united states supreme court and by the illinois supreme court and the illinois supreme court cases that i've read they recognize it's extremely difficult i think the the united states supreme court cases i read have recognize it's extremely difficult to go back and for a judge to go back and for the parties to go back and reconstruct the record but my understanding of the entire framework under batson is that if the court got it wrong if the trial court got it wrong in the if i if i had doubts about whether a pattern had been established i think maybe the first thing would be ok defense counsel can you give me a little bit more of what what he what he angling toward here but again you know i go back to when i read what he actually said and i compare it to the rivera factors had i been a trial judge or where there were very factors i would have said ok she's already got one two three four that's good enough for me prosecutor give me your give me your race neutral how it used to be it's been a long time since i was a trial judge but the practice offered was the jury sitting there it was the she was there what's your position well we seek to excuse that what happened in this case boy you've got to give you've got me on that one because it has been a long time since i read the record my recollection is my recollection is this was done when they were discussing the panels of for outside i believe i believe outside of the presence of the venue where i but i am not sure well i'll be asking the same question of was johnson but i'm  curious is the where the d the use of peremptory challenges occurred in the presence of or outside the presence of the jury and particularly with the whole because you never know if abets and issue is going to the whole reason we have the bastard framework is that we are trying to preserve the right to an impartial jury it helps to preserve the impartiality of the jury if this stuff is done not in front of the jury that seems like a logical conclusion that seems like a good remedy in this case or to provide guidance for future cases i agree believe i believe that as i read i don't just believe i know i recognize that is within your discretion absolutely the only the only caveat i would have to that is that i believe in my other issues too and i believe that this case should be reversed and remanded for a new trial and if you were to reach that conclusion with regard to one of the other two issues that would obviate the need for a batson hearing at all because you get a new jury trial so that's my only caddy there but i recognize that's within the discretion of the court and you know i also worry about the practical considerations here my client has has been serving his prison sentence and if this goes the issue about the right to presence being violated my position is that the violation of the right to presence in this case infringed on mr shah's right to confrontation and his right to an impartial jury under the sixth  amendment those are important substantive constitutional six and then what rights you can reach the issue as a matter of plain error because it involves fundamental rights as well as the evidence being close i don't think the other the evidence is not overwhelming in this case the police did not recover cocaine from the person of mr shah they recovered it from the ground in the parking lot the police did not see mr shaw throw our drop anything during the chase for the struggle and the police had received complaints the reason they were there that night was that they had received complaints from the owners of the elks club and the bars nearby that people were lots of people were in the parking lots drinking and smoking and probably smoking marijuana and doing drugs so this this was this was not an actual possession we got it from his pants type of case this was the evidence was close as to whether this defendant possessed cocaine and he he has asserted the h so the trial court stated that after buying them the trial court stated that they did not believe that a pattern had been established defense counsel actually conceded i agree i don't think a immediately question the procedure and indicated that there first has to be a pattern shown well this was the first african american perspective juror so how can there be a pattern established and you've identified the first step is the burden falls on the defendant the defendant is to make the showing a purposeful discrimination racial identity with the defendant and the excluded veneer person is one of those factors a pattern is one of those factors and then there are five other  with the first time in this issue arises i think arguably you cannot however i disagree that be establishment of a pattern is the only thing that must exist before you can find a batson violation it's one of  if you're saying that you can't have a pattern i think that it's just logically follows with regards of the first ransom gel and then the prosecutor misled the court the defense counsel did say you should look at all of the evidence up to that point that are within those seven factors and you should articulate those and carry your burden to the trial court and give me the other fair there's that you could imagine being able to stay on this record i acknowledge it's difficult i that crushed while here is a well at this point it's arguable that the record supports your finding that the trial judge found that that first step of been crossed because after the defense counsel made the statement that she had been disregarded or excluded in that she was the first black when he turned to the state and he said to the state response in response the state did say that they didn't think a pattern was established at this point which we have already discussed but he also gave  nonsense response because a parent couldn't have been established the first them excepting that he also made the statement that he was challenging her because she had hesitated when she even asked if she could find a guilty verdict form the hesitation had lasted to the extent that the trial court asked the question again implicit in your argument is that we should determine that everyone in the court room there the prosecutor the defense attorney in the trial was aware of the of the three first stage and then the second stage to ask if there's a race neutral reason and trial courts have been criticized in many of the appellate court and supreme court decisions because they collapse those two steps they make it one and that does seem to be what happened here the defense counsel made an objection the trial court did not rule on that the trial court said state what's your response so i recognize that this did not follow the clear and distinct steps that batson has set forth where  the court did not articulate them at the same time by the time we got to smith which was our second challenge the defense counsel had not articulated them either and i disagree that defense that the trial court is supposed to seek out the evidence and present the bad singing case for defendant or respond to those arguments when defendant himself didn't bother to make them while of course the court has to be engaged in it based on the defendant's presentation of those seven factors which identity racial identity is one but the court cases are clear that it's and also other relevant circumstances it's not a pass for the defense counsel to just say we have racial identity now here's our second one we've got a pattern i don't have to do anymore which was the reason that there was not a need to go into any additional articulation of the evidence that wasn't there imagine how much better this record with the trial court aris neutral reason for striking the juror it would be ideal let me ask you really would and then of course the third step would be the trial court having considered all of that and the other arguments presentations made  reading of this record is all of this taken place one of the jurors right there my recollection is it was not and i was trying to check and didn't get through before i came out but my recollection is no this was not taking place and they retired in th prosecutor is not still in that camp the record would still be what the right the challenges that were made would still be what the challenges are so small we would be on a cold record that the court would be articulating credibility f do you have any other bets and then i will move on to the additional arguments the second argument that the defendant race has to do with the admission of testimony that if you are in possession of ten grams or less of cannabis that it can be handled through the issuance of a citation and the there were three different officers that testified to this fact officer olson testified of the three officers he was the first and h testified that if you are caught in possession of ten grams or less of cannabis the officer can resolve the tape take care of it by issuing a ticket and that the ticket is handled by the payment of a fine and it does not result in a criminal record officer olson testified that the two female passengers who were with the defendant at the time were issued ticket there was no objection at any time to any of that testimony by officer olson thereafter sergeant thompson testified and consistent with officer olson he testified that again if you're caught with ten grams or less of cannabis you can be handled through the issuance of a ticket he again stated the two female officer webb was the third officer then who testified and he testified that most of the time if you're caught with ten grams or less of cannabis it is handled through a ticket and then he is the one who testified that in his experience when a suspect is in possession of ten grams or less they do not run without the testimony that you are calling and i apologize if i have that wrong in addition to testifying that they do not normally run he was also asked to comment on what is the procedure when a suspect does run an officer web testified that the normal procedure is to follow the path that the defendant took to see if they dropped anything obviously did they drop any other evidence defendant objected to this testimony on the basis of relevance now again the substance the first part of this the part about the fact that ten grams of cannabis or less can be handled with a ticket had been addressed through olsen's testimony without any objection the trial court was proper and overruling that portion of the objection but were still them about the issuance of tickets in that same vein he was also talking about the fact that it was given to the two female passengers but thompson testified also about the tickets and also testified that the two female passengers were handled in this manner so again this was all testimony that the jury heard without objection so at the point that they're hearing it again from thompson and from webb the trial court was right to over rule it but the bigger point is it's really a distinction without a difference the substance and the significance circumstance that the jury heard without objection was not that the tickets were given to the females and not to the defendant it was the manner in which it could be handled it was the fact that a ticket could be issued for ten grams or less that you would pay a fine and that there would not be a criminal record attached to it what's the relevancy it is relevant because defendant ted's claim that the cocaine that was found was not his during his when he was originally approached the car and he stepped out he was asked if he had anything on him and he said no i don't surely they're after is when he started his first of at least two attempts to escape from the police and in the record there's evidence of a very circuitous path bumping into cars damage to cars it was a serious chase when he was finally caught after tasers were employed he was on the ground and he pulled his arms underneath him and despite being ordered to remove his arm so that he could because he kept fighting it and would not do it when they were finally able to stand him up on the ground beneath him where his arms have been was the package of the bag of cocaine so the the relevance of the testimony as we know that you would get most likely and i want to point out the testimony was never that you always get a ticket if you're caught in possession of cannabis the officers were clear that you can and that most often you do but the state never misstated the law and they never allowed their witnesses to misstate the law by saying that you can only handle it that way that's not accurate but it was relevant to prove whether this cocaine that he denies i his was his it was found directly underneath him and we know that if he had only been in possession of the cannabis he would have most likely been treated as the two family passengers were with a ticket the reason to run was the cocaine which the fact that the state then reference to their testimony in its closing argument and defendant alleges it was error but he also acknowledges it was not objected to and it was not included in his post trauma motions so he has to establish that it error for the state to reference this and in making the argument he references two different times in closing where the state mentioned the fact that you can be resolved with a ticket for possession of ten grams or less the first citation that defendant provides was again in response to the state's argument that the two women in possession were handled with the ticket and they were not arrested this was a proper comment it was a comment based on the evidence there was no objection to the evidence and there was nothing wrong with the closing argument statement the second instance the defendant race again was a reference to evidence that was in the trial record and it was a statement that the defendant  to get the statement correct that the defendant would not have been arrested had he admitted that he was in possession of this cannabis when he again when he was first taken out of the car he said i don't have any cannabis after the chase they stood him back up he said ok i've got weed in my pocket this was the first time that he acknowledged it and the state was making the reference why in now admitting that you possess the cannabis why would you do that because this is an offense that you taken are clear the the role in fulfilling those steps as they should be so that it can be something or the used on appeal as we're here today arguing apparently or not clear i think any wisdom that this panel can share with the lower courts to help them in that to help all of us when we come up against these issues would be greatly appreciat with regard to that to be a batson inquiry the court has expressed some concern and it's a concern that i share about you know how do you go back and make a better record on a case that is so old and i would like to suggest that that has been dealt with by the illinois supreme court the illinois supreme court in people versus davis it was a situation where they found the trial judge had not articulated his reasons sufficiently and in that case the judge had retired the illinois supreme court said the best way to fix this is to get him to do an a testify with regard to the affidavit counsel for the state has mentioned that the prosecuting attorney in this case retired you can do the same thing with the prosecuting attorney in this noise i'd still be very he might still be available it's not the best remedy available but it's if you if you believe batson is important and if you believe that the right to an impartial jury is important this is what you have to do it's the best remedy so you're suggesting to us that of the can do it we can do yes your honor i  am and just just to clarify a few points about the record that i just i respectfully disagree with counsel on she states that with the first peremptory strike that defense counsel conceded a pattern had been had had not been established i disagree defense counsel did not say that what she said was it is difficult to establish a pattern when this is the first black juror on the veneer now that's not an incorrect statement of the law andrews and davis recognized it's difficult but they also sad depending on the circumstances you can establish a pattern with just one and incidentally one of the circumstances they recognize in andrews and davis was if this is the first black person on the vineyard and they are stricken that can be a pattern so i want to clarify that defense counsel never conceded that and she made her record and i doubt the wisdom of of the judges on the reviewing courts i remember i'm never good think of never a good thing to do i respect i respect this court highly i respect the illinois supreme court i i don't understand see they made those statements in andrews and davis it's hard for me to get my head around the circumstances where it can rise the best i can do is what i just identified where it's the first person on the veneer  for the state also mentioned that the burden is on the defendant to show the prime and face the case and she emphasized that i don't disagree with that davis andrews rivera they all recognize that but they also said all three of those cases clearly delineated that the trial court has some independent responsibility at the point where the peremptory strike is exercised to look at the record and evidence in the record in its entirety that would support the crime the facia case and again i also i also disagree that the only thing defense counsel said was that these two persons were members of a  for the seven rivera factors are racial identity with the defendant that's established here yes there was i would i would concede that on the facts of this record there was a pattern of strikes against against these two blacks on the