2014 IL App (4th) 1 21157 NO. 4

- 12

- 1157 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff

- Appellee , v. DAVEY R. SHAW, JR. , Defendant

- Appel lant

. ) ) ) ) ) ) ) ) Appeal from Circuit Court of Vermilion County No. 09CF393 Honorable Nancy S. Fahey , Judge Presiding.

JUSTICE HARRIS deli vered the judgment of the court, with opinion. Justices Holder White and Steigmann concurred in the judgment and opinion

. OPINION ¶ 1 In August 2009, the State charged defendant, Davey R. Shaw, Jr. , with possession of a controlled substance (cocaine ) (count I) (720 ILCS 57 0/402 (c ) (West 2008)), possession of cannabis (count II) (720 ILCS 550/4(a) (West 2008)), and resisting or obstructing a peace officer (count III) (720 ILCS 5/31

- 1(a) (West 2008)). After an October 2012 trial, a jury found defendant guilty of all three ch arges . In November 2012, defendant filed a motion for a new trial , which the trial court denied. In December 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine) , to run concurrent ly with
a 364

- day sentence for resisting or obstructing a peace officer and a 30

- day sentence for possession of cannabis. ¶ 2 Defendant appeals , arguing the trial court (1) erred in refusing to conduct a
Batson hearing ( Batson v. Kentucky , 476 U.S. 79, 89 (1986)) ; (2) erred in admitting evidence, 

## FILED November 25, 2014 Carla Bender 4 th District Appellate Court, IL- 2

- over objection, and allowing argument that possession of can nabis was a "fine

- only" offense; and (3) violated his constitutional right to confront witnesses when it heard witness testimony outside his presence. We agree the trial court failed to conduct a sufficient Batson hearing , and we remand with directions. ¶ 3 I. BACKGROUND ¶ 4 On August 10, 2009 , the State charged defendant by information with possession of a controlled substance (cocaine), a Class 4 felony (co unt I) (720 ILCS 570/402(c) (West 2008)); possession of cannabis, a Class C misdemeanor (count II) (720 ILCS 550/4(a) (West 2008)); and resisting or obstructing a peace officer, a Class A misdemeanor (count III) (720
ILCS 5/31

- 1(a) (West 2008)). ¶ 5 Defendan t's first jury trial ended in a mistrial. His second jury trial commenced on October 17, 2012. Because we remand for further proceedings on defendant's Batson challenges, w e discuss only those facts related to the issue of alleged discrimination in the selection of the jury. ¶ 6 A. Voir Dire ¶ 7 The jury venire in this case consisted of 28 potential jurors, which the trial court divided into two groups of 14 venire members . No Batson issue was raised during consideration of the first panel of 14 poten tial jurors. In the second panel of potential jurors, the State used peremptory challenges on two African

- American venire members and defendant raised respective Batson objections

. The record establishes defendant is African

- American. ¶ 8 Defendant rais ed his first Batson objection w hen the State sought to use a peremptory challenge on Esther Bynum. T he following colloquy occurred: "[PROSECUTOR ] : We'd ask to excuse Miss Bynum.- 3

- [DEFENSE COUNSEL ] : Your Honor, at this time I would like to raise a [ Batson ] issue. Miss Bynum is the only black on this panel so far. She is a member of a cognizable racial group. The Prosecutor has used its [ sic ] peremptory challenge to remove that venire member from the jury, and there are no facts or other relevant circums tances that would raise an inference that this was anything other than for race. THE COURT: Mr. [Prosecutor]. [PROSECUTOR ] : That's actually

— I don't think this is the correct procedure. You have to show a pattern with regard to the
State. But with regard to Miss Bynum, the Court asked her if she could sign a guilty verdict, and she hesitated and had the Court basically re[

- ]ask the question. That was one of the reasons. But I don't believe this is a proper inquiry under the nature of the case law at thi s point. There has to be a pattern shown with regard to the State kicking off jurors with regard to race. [DEFENSE COUNSEL ] : Your Honor, it would be difficult to establish a pattern where she is the only one to this point. Every other member of the jury to this point has been white. She is the first black person that we've reached. THE COURT: The Court has determined that t he Defendant has not established a pattern under Batson ."- 4

- Accordingly, the court excused Bynum from the venire

. ¶ 9 Defendant raised his second Batson objection w hen the State sought to use a peremptory challenge on Jacqueline Smith

— the first person consider ed for alternate juror

. The State had failed in its earlier attempt to remove Smith f or cause. Regarding the State's use of a peremptory challenge on Smith , t he following colloquy occurred: "[PROSECUTOR] : Okay. The State would use [its last] challenge with regard to Miss Smith as we did before on cause. [DEFENSE COUNSEL ] : Your Honor, again I would raise

a Batson issue. She is the second black person in this venire. Every single other person has been white. The State has now exercised peremptories against both blacks, and I would suggest that we now have a pattern. [PROSECUTOR ] : And if it helps, we'll accept Miss Williams. THE COURT: Well, on the issue of Miss Smith, I don't think a pattern has been shown. There was an original motion to

remo ve Miss Smith for cause because of her relationship with Mr. Shaw's family, and I denied the motion for cause. But I do not feel that there has been established a pattern with either Miss Bynum or Miss Smith." Accordingly, t he trial court excused Smith from the venire . Thereafter, Natalie Williams, the third African

- American in the venire, was accepted as the alternate juror

. ¶ 10 B . Posttrial Proceedings- 5

- ¶ 11 On November 9, 2012, defendant filed a motion for a new trial, asserting in relevant part that the trial court erred by (1) denying his request for a Batson hearing and (2) allowing testimony regarding possession of cannabis being a "fine

- only" offense. Following a November 28, 2012, hearing on defendant's motion, the trial court took the matter un der advisement. In a November 29, 2012, docket entry , the trial court denied def endant's motion for a new trial

. ¶ 12 O n December 17, 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine) , to run concurrent ly with a 364

- day sentence for resisting or obstructing a peace officer and a 30

- day sentence for possession of cannabis. ¶ 13 This appeal followed. ¶ 14 II. ANALYSIS ¶ 15 On appeal, defendant asserts the trial court (1) erred in refusing to condu ct a
Batson hearing; (2) erred in admitting evidence and allowing argument that possession of cannabis was a "fine

- only" offense; and (3) violated his constitutional right to confront witnesses when it heard witness testimony outside his presence. ¶ 16 A. Th e Three

- Step Batson Procedure ¶ 17 In Batson , the United States Supreme Court held "the Equal Protection Clause [of the United States Constitution (U.S. Const. , amend. XIV, § 1)] forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."
Batson , 476 U.S. at 89. Accord ingly, the Batson C ourt established a three

- step process to evaluate claims of alleged discrimi nation during jury selection.- 6

- ¶ 18 During the first step of a Batson hearing, "the defendant must make a prima facie showing that the prosecutor has exercised perem ptory challenges on the basis of race." People v.
Davis , 231 Ill. 2d 349, 360, 899 N.E.2d 238, 245 (2008). "[T]he threshold for making out a prima facie claim under Batson is not high: 'a defendant satisfies the requirements of Batson 's first step by pr oducing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' " Id

. (quoting Johnson v. California , 545 U.S. 162, 170 (2005)). In determining whether the person alleging discrimination has established a pri ma facie case, the trial 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." Id

. (quoting Batson , 476 U.S. at 94, 96

- 97 ). The relevant factors the court should consider include the following:

" ' (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 dispro portionate 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 dir e examination and while exercising peremptory challenges; (6) whether the excluded African

- American venirepersons were a heterogenous group sharing race as their only common characteristic; and (7) the race of the defendant, victim, and witnesses. ' " Peopl e v. Rivera , 221 Ill.- 7

- 2d 481, 501, 852 N.E.2d 771, 783

- 84 (2006) (quoting People v. Williams , 173 Ill. 2d 48, 71, 670 N.E.2d 638, 650 (1996))

. In addition, a "comparative juror analysis" is another factor for the court to take into consideration in determi ning the existence of a prima facie case. Davis , 231 Ill. 2d at 362, 899 N.E.2d at 246. A comparative juror analysis examines " ' a prosecutor's questions to prospective jurors and the jurors' responses, to see whether the prosecutor treated otherwise similar jurors differently because of their membership in a particular group

. ' " Id . at 361, 899 N.E.2d at 245

- 46 ( quoting Boyd v. Newland , 46 7 F.3d 1139, 1145 (9th Cir. 2004 )). If the trial court

— after considering "the totality of all the relevant facts and circumstances to determine whether they give rise to an inference of discriminatory purpose"

— concludes the defendant established a prima facie case of discrimination in the selection of the jury, the court proceeds to the next step. Id

. at 362, 899 N .E.2d at 246

. ¶ 19 During the second step of the Batson hearing, the focus shifts to the prosecutor , who must articulate a race

- neutral reason for striking the juror. Id . at 362

- 63, 899 N.E.2d at 246. Once the prosecutor establishes a race

- neutral reason fo r striking the juror, the defendant may rebut the proffered reason as pretextual. Id . at 363, 899 N.E.2d at 247. ¶ 20 Finally, during the third step of the Batson hearing, "the trial court must determine whether the defendant has shown purposeful discriminat ion in light of the parties' submissions." Id. During this step, the 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. " Id . at 364, 899 N.E.2d
at 247. ¶ 21 B. Defendant's Batson Objections- 8

- ¶ 22 In this case, defendant raised Batson objections immediately following the State's peremptory challenges of two venire members, both of whom were African

- American

. ¶ 23 1. Defendant's First Batson Objection ¶ 24 Defendant made his first Batson objection after the State exercised a peremptory challeng e on Bynum , arguing, "there are no facts or other relevant circumstances that would raise an inference that this was anything other than for race

. " Immediately thereafter, the trial court addressed the prosecutor, evidently s eeking his input on the matter . The prosecutor responded, "I don't think this is the correct procedure. You have to show a pattern with regard to the State. *** There has to be a pattern shown with regard to the State kicking off jurors with

r egard to race." The prosecutor, neverthe less, asserted his reason for dismissing Bynum was due to her "hesitation" in answering a specific question during voir dire

. Defendant countered that it would be impossible to show a pattern where Bynum was the first African

- American venire member to be considered . Without further elaboration by either party, the court excused Bynum from the venire, concluding only "that the Defendant has not established a pattern under Batson ." ¶ 25 Initially, we note that while evidence of a pattern of discriminatory stri kes is one factor a court should consider when determining whether the party challenging the peremptory strike has established a prima facie case under Batson , it is not a dispositive factor. See People v. Blackwell , 164 Ill. 2d 67, 7 5 , 646 N.E.2d 610, 61 4 (1995) ("A pattern of strikes is a factor this court will consider in evaluating a Batson claim but is not dispositive."); People v. Davis , 345 Ill. App. 3d 901, 910, 803 N.E.2d 514, 522 (2004) ("If the absence of a 'pattern of strikes' were enough, in a nd of itself, to defeat the establishment of a prima facie case of discrimination under
Batson , this would effectively enable a prosecutor to exercise at least one peremptory challenge in a discriminatory manner. Such a possibility is untenable in light of the fact that pursuant to- 9

- Batson and its progeny, t he exclusion of just one venire person on account of race is unconstitutional and require s reversal of the conviction." ). ¶ 26 Based on the record before us , it is un clear whether the trial court found defendant established a prima facie case of discrimination in regard to Bynum . Although it appears the proceedings drifted into the second stage of the Batson analysis , where the State offered a race ne utral reason for excusing Bynum (s ee Davis , 231 Ill. 2d at 362

- 63, 899 N.E.2d at 246 (input from the State is not relevant until after a court has concluded the defendant established a prima facie case of discrimination ) ) , other than commenting on a lack of a pattern demon strated, the trial court did not address any of the other factors to be considered in ascertaining whether a defendant has established a prima facie case of discrimination

. Instead of proceeding methodica lly through the required three

- s tep Batson procedur e, it appears the trial court collapsed the first and second step s into a single inquiry , which was incorrect . See Rivera , 221 Ill. 2d at 500

- 01, 852 N.E.2d at 783 ("[T]his court has repeatedly cautioned that the first and second steps in the process 'should 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. ' " (quoting People v. Wiley , 156 Il l. 2d 464, 475, 622 N.E.2d 766, 771 (1993)) )

. The court here should have completed the first step of the analysis and determined whether or not a prima facie case of discrimination had been established before proceeding to the second step. Instead , the r ecord indicates the court denied defendant's
Batson challenge as to Bynum based on defendant's failure to establish a pattern of discrimination in the selection of the jury by the State, which, as mentioned above , is only one of several factors a court sho uld consider when determining whether a defendant has established a prima facie case of discrimination at the first stage.- 10

- ¶ 27 2. Defendant's Second Batson Objection ¶ 28 Defendant made his second Batson objection after the State exercised a peremptory challenge on Smith. Upon raising this Batson objection, d efendant asserted , "[t]he State has now exercised peremptories against both blacks, and I would suggest that we now have a pattern." Without seeking input from the State, the trial court referred to the State's earlier attempt to remove Smith for cause and then excused her from the venire, concluding, " I do not feel that there has been established a pattern with either Miss Bynum or Miss Smith

. " ¶ 29 Based on the record before us , we are unable to determine which , if any, of the
Batson steps the trial court undertook regarding defendant's objection to the State's peremptory challenge of Smith

. We further note the court's docket

- entry denial of defenda nt's motion for a new trial does not provide additional evidence to assist this court in making a reasoned determination regarding the court's intentions or rationale for denying either of defendant's
Batson objections

. ¶ 30 Batson and its progeny have estab lished a clear three

- step process that trial courts must follow when evaluating a claim of discrimination during jury selection. That procedure was not followed here and , as a result, the record is insufficient for us to conduct a meaningful review of defendant's Batson challenges . Thus , we find it necessary to remand to the trial court for the limited purpose of conducting a full Batson hearing concerning the State's peremptory challenges of Bynum and Smith

. ¶ 31 C. Batson Hearing on Remand ¶ 32 In an effort to provide guidance to the trial court, we recommend it follow the procedure set forth below when it conducts the Batson hearing on remand. We believe a step

-- 11

- by

- step , methodical approach will aid the circuit court in conducting this and future Batson hearings. ¶ 33 During the first step of the Batson hearing on remand, defendant should be given

an opportunity to fully address his Batson challenges as to Bynum and Smith. The trial court shall then determine , based on the seven factors in Rivera , as discussed above (here, given that the prosecutor did not pose questions to either Bynum or Smith during voir dire , a comparative juror analysis is unnecessary) , whether defendant has succeeded or failed in establishing a prima facie case as to both excluded jurors , and it shall make findings in this regard and articul ate the basis of its findings. Defendant may call his defense counsel along with Bynum and Smith to testify at the hearing if he wishes

. People v. Andrews , 132 Ill. 2d 451, 462

- 63 , 548 N.E.2d 1025, 1030 (1989). The trial court may consider, in addition to the evidence and argument presented by defendant, any notes it may have made contemporaneous to voir dire or recollections of observation s it may have made of Bynum and Smith

. I d . at 463, 548 N.E. 2d at 1030. ¶ 34 If the trial court finds defendant has failed to establish a prima facie case of purposeful discrimination, the Batson hearing is concluded. However, if the court finds a prima facie showing has been made, the hearing wil l proceed to the second step , where the burden shifts to the State to come forward with a race

- neutral explanation for challenging the juror(s). As stated in Batson , i n articulating that explanation, "the prosecutor must give a ' clear and reasonably speci fic ' explanation of hi s ' legitimate reasons ' for exercising the challenges."
Batson , 476 U.S. at 98 n.20 (quoting Texas Department of Community Affairs v. Burdine , 450
U.S. 248, 258 (1981)). The State may advance not only explanations it made contemporaneous to the trial pr oceedings, but may also advance any further explanations regardless of the subsequent passage of time. People v. Hope , 137 Ill. 2d 430, 467, 56 0 N.E.2d 849, 866 (1990).- 12

- We note that prosecutors are not subject to cross

- exam ination or testifying under oath at Batson hearings. People v. Harris , 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379 (1989). Thereafter, t he defendant should be allowed to respond and present any argument that the State's proffered explanation is pretextual. ¶ 35 Assuming the State has advanced a race

- neutral explanation, the Batson hearing then proceed s to the third step . D uring the third step, the trial court must determine whether defendant has established purposeful discrimination in light of the parties' s ubmissions. At this point , the court must make credibility findings. In noting the pivotal role of the trial court at this stage, t he Supreme C ourt in S nyder v. Louisiana , 552 U

. S. 472, 477 (2008) , stat ed as follows: "Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility [citation] , and the 'best evi dence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge , ' [citation ]

. In addition, race

- neutral reasons for peremp tory challenges often invoke a juror's demeanor ( e.g. , nervousness, inattention), making the trial court's firsthand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belie s a 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." We understand that it may be difficult for the court in this case to make such cred ibility determinations and recall its observations of an individual's demeanor given the considerable passage of time. See Davis , 231 Ill. 2d at 368, 899 N.E. 2d at 249

- 50 ( "We realize that- 13

- determinations of credibility and demeanor ( e.g. , facial expressi ons and the inflection and tone of voice when answering questions ) may be extremely difficult on remand, which will no w be more than four years after the trial."). However, it is important that the trial court do so if possible and articulate its credibil ity findings and conclusions of law in order to allow for meaningful appellate review. ¶ 36 Because we remand for a Batson hearing, we withhold disposition of the remaining issues on appeal. See Davis , 231 Ill. 2d at 370, 899 N.E.2d at 250 (disposition of

re maining issues on appeal to be announced after the Batson proceedings on remand)

. The trial
court shall file its findings of fact and conclusions of law with the clerk of this court within 60 days of its decision, accompanied by the record of the proceedings on remand. Id

. ; People v. Martinez , 317 Ill. App. 3d 1040, 1046, 740 N.E.2d 1185, 1190 (2000)

. We retain jurisdiction to

rev iew the court's ruling after remand and to address the remaining issues raised by defendant in this appeal. Defendant and the State will be allowed to submit supplemental briefs in this court addressing any issues which arise from the Batson hearing on re mand. See Davis , 345 Ill. App.
at 912, 803 N.E.2d at 523. ¶ 37 III. CONCLUSION ¶ 38 For the reasons stated, we remand this cause to the circuit court of Vermilion County for proceedings consistent with this o pinion

. ¶ 39 Rema nded with directions.