Fleming v. MoswinFleming v. Moswin
JUSTICE ROCHFORD delivered the judgment of the court.
Justice Hall and Justice Karnezis concurrred in the judgment.
Held: Following a defense verdict in this medical malpractice lawsuit, plaintiffs filed an unsuccessful posttrial motion for a new trial asserting that the trial court improperly: (1) rejected their Batson challenge; and (2) allowed defendant doctor to introduce evidence at trial in violation of both the Dead Man‘s Act and the general rule against hearsay. Because the trial court‘s Batson analysis was insufficient, we retain jurisdiction and remand for further proceedings on that issue only.
¶ 1 In this medical malpractice action, plaintiffs-appellants, Laurensa Fleming and Lorenzo Weaver, Special Co-Administrators of the Estate of Lawrence Fleming, Jr., Deceased, sought to recover damages following decedent‘s death of bladder cancer in 2004. Before trial, a directed verdict was entered in favor of defendant Roberto Ramirez, M.D. Following a jury trial, judgment was entered in favor of defendants-appellants, Arthur Moswin, M.D., his employer, Hyde Park Associates in Medicine, Ltd., a corporation (collectively, Dr. Moswin), and Mark Schacht, M.D. On appeal, plaintiffs contend the trial court improperly denied their posttrial motion for a new trial because: (1) Dr. Schacht exercised a peremptory challenge against a prospective juror in violation of the principles espoused in Batson v. Kentucky, 476 U.S. 79 (1986); and (2) evidence was admitted at trial in violation of both the Dead Man‘s Act (
¶ 2 ¶ 3 Because we remand for further proceedings on plaintiffs’ Batson challenge, we recite only those facts necessary for our consideration of that issue.
¶ 4 The original complaint in this matter was filed in May 2005, and a number of subsequent amended complaints were filed over the course of the next four years. In their pleadings, plaintiffs generally alleged that the named defendants were involved in the evaluation and treatment of decedent‘s complaints of a host of urinary difficulties and related issues throughout 2002 and 2003. Plaintiffs alleged that as a result of various acts of negligence on the part of defendants, the diagnosis of decedent‘s bladder tumor was significantly delayed and this delay contributed to decedent‘s death from metastatic bladder cancer in August of 2004.
¶ 6 Jury selection for the trial, thereafter, began with each side being given seven peremptory challenges, with an additional challenge awarded to each side for use in selecting alternate jurors. The defense side split their seven challenges, with four challenges awarded to Dr. Moswin and three challenges awarded to Dr. Schacht. The venire itself originally consisted of 42 people, which was divided in half for purposes of jury selection. Each group of 21 potential jurors was asked a series of group and individual questions, first by the trial court and then by counsel for each party. Group questions were typically answered by a show of hands, with the trial court verbally indicating those nonverbal responses for the record, or recorded as a group “yes” or “no.” Nonverbal responses were not otherwise recorded.
¶ 7 The record reflects plaintiffs and decedent are African-American, while defendants are white. The venire included a total of 11 African-Americans.1 Dr. Moswin exercised three of his four challenges, with two challenges used to excuse African-American members of the venire. Dr. Schacht used two of his three challenges, and, on both occasions, he excused African-Americans. Specifically, Dr. Schacht excused juror No. 13, Ian Okosi, and juror No. 21, Betty Riley. Following Dr. Schacht‘s challenge to Ms. Riley, plaintiffs indicated they felt there was a Batson issue with respect to his challenges.2 The trial court then invited plaintiffs to “[p]ut it on the record.”
¶ 9 Plaintiffs challenged Dr. Schacht‘s expressed reasons, first noting that he had accepted a white juror–Mr. Carchi–who was even younger than Mr. Okosi. Counsel for Dr. Schacht responded: “There‘s a lot of young people, and we got rid of some of them; but you can‘t have a jury full of 20-year-olds and 21-year-olds and 22-year-olds.” With respect to Ms. Riley, plaintiffs asked counsel for Dr. Schacht to clarify his reasoning, and he reiterated: “It has nothing to do with her age. She had a sarcastic answer to being asked about her medical care and whether she was satisfied with it.”
¶ 10 The trial court denied plaintiffs’ Batson challenge to Dr. Schacht‘s peremptory challenges at that point, explaining:
“I will note that the – at this point that the reason you gave had nothing to do with [Mr. Okosi‘s] fairness or his ability to serve in any kind of bias. You just picked out age. I can see with 21 [Ms. Riley] possibly you‘re saying you believe that for – the comment about her healthcare with doctors shows some kind of bias because you thought it was a sarcastic answer. I will let you go on, but I will note for the record that basically both your challenges have been against African Americans, and one of them has not been for a reason that you believe this person would be unfair or biased. So that‘s on 13 [Mr. Okosi] because of his age. I‘m just noting that. I will not accept – I will not rule that this is a Baxin [sic] violation at this point, but I have noted that.”
The jury ultimately included three African-American jurors, with an additional two white jurors serving as alternates.
¶ 12 Following the entry of judgment on the jury‘s verdict, plaintiffs filed a posttrial motion for a new trial which raised a number of issues. Of particular relevance here, plaintiffs’ motion contended the trial court improperly denied: (1) their assertion that Dr. Schacht‘s peremptory challenges against Mr. Okosi and Ms. Riley violated Batson; and (2) their motions to bar or limit Dr. Schacht‘s testimony. A hearing was held on the motion, including the Batson issues, and the trial court ultimately rejected all of the arguments raised by plaintiffs and denied their posttrial motion in a written order. However, the trial court did reevaluate its prior analysis of these two issues in its written order.
¶ 14 In a discussion at the hearing on the posttrial motion, counsel for Dr. Schacht indicated Ms. Riley‘s response was indeed given to a group question, but it was also sarcastic in tone. Dr. Schacht stated that such individual nonverbal responses, were not recorded by the reporter. The trial court responded that Dr. Schacht‘s counsel did not follow up on this concern with Ms. Riley, and Dr. Schacht‘s counsel was the only participant in the proceedings to take any particular notice of Ms. Riley‘s response.
¶ 15 The trial court made a number of more specific observations in its written order. It first indicated it was counsel for Dr. Moswin, who asked the following group question: “For those of you who are under the care of a primary care doc, is there anybody here who does not have a good relationship with that doc? Is there anybody here who is not happy with the care that they get from their primary care doctor?” Moreover, while Dr. Schacht‘s counsel stated he perceived a sarcastic response to this question from Ms. Riley, the trial court noted that the transcript of the jury selection process did not reflect any response from Ms. Riley. Indeed, no group response to this question was recorded in the transcript at all. The only response actually recorded in the transcript was from another prospective juror, after being prompted for a response by counsel for Dr. Moswin. Finally, the trial court noted that Dr. Schacht‘s counsel did not follow up on any concerns about this perceived response with individual questions directed toward Ms. Riley about that response.
“Considering the totality of the circumstances, including the racial makeup of the resulting jury, the Court rules that the Plaintiff‘s [sic] received a fair trial, and that no retrial is required under Batson. The Plaintiff[s] failed to meet the ultimate burden of establishing a pattern [of] purposeful discrimination. Accordingly, there was no error, and Plaintiffs’ motion for a new trial on this should be denied.”
¶ 17 With respect to Dr. Schacht‘s testimony, the trial court again rejected plaintiffs’ contentions regarding the Dead Man‘s Act. Plaintiffs now appeal.
¶ 18 ¶ 19 As noted above, on appeal, plaintiffs challenge the denial of their posttrial motion for a new trial on the grounds that they were denied a fair trial due to the improper exclusion of Ms. Riley as a juror and the introduction of Dr. Schacht‘s challenged testimony regarding his conversations with the decedent.
A. Standard of Review
¶ 20 ¶ 21 In considering whether a motion for a new trial should be granted, the trial court should set aside a jury‘s verdict only if it was contrary to the manifest weight of the evidence or a party has been denied a fair trial. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). The trial court is in a superior position to consider errors that occurred, the fairness of the trial to all parties, and whether substantial justice was accomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925, 932-33 (1994). A trial court‘s ruling on a motion for new trial will not be reversed unless there is an affirmative showing that it clearly abused its discretion. Gustafson, 151 Ill. 2d at 455.
¶ 22 ¶ 23 Because we find that the trial court‘s analysis of Dr. Schacht‘s peremptory challenge to Ms. Riley was improper, and we, therefore, remand for further proceedings on that basis, our analysis is limited to a consideration of the Batson issues raised on appeal.
1. Legal Framework
¶ 24 ¶ 25 “In Batson, the United States Supreme Court held that, in a criminal case, the fourteenth amendment‘s equal protection clause prohibits a prosecutor from using a peremptory challenge to exclude a prospective juror solely on the basis of his or her race.” Mack v. Anderson, 371 Ill. App. 3d 36, 43 (2006) (citing Batson, 476 U.S. at 89). This rule was extended in Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991), wherein the court held that “courts must entertain a challenge to a private litigant‘s racially discriminatory use of peremptory challenges in a civil trial.” Edmonson, 500 U.S. at 631. The Batson decision provides “a three-step process for evaluating claims of discrimination in jury selection.” Mack, 371 Ill. App. 3d at 44. Specifically, this court has recognized:
“First, the moving party must meet his burden of making a prima facie showing that the nonmoving party exercised its peremptory challenge on the basis of race. [Citations.] If a prima facie case is made, the process moves to the second step where the burden then shifts to the nonmoving party to articulate a race-neutral explanation for excusing the venireperson. [Citations.] Once the nonmoving party articulates its reasons for excusing the venireperson in question, the process moves to the third step, where the trial court must determine whether the moving party has carried his burden of establishing purposeful discrimination. [Citations.] At the third step, the trial court evaluates the reasons provided by the nonmoving party as well as claims by the moving party that the proffered reasons are pretextual. [Citations.]” Id.
¶ 27 In sum, 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 an inference of a discriminatory purpose. Id. at 360. Only if a prima facie case of purposeful racial discrimination has been demonstrated does the analysis continue to the next step. People v. Rivera, 221 Ill. 2d 481, 501-02 (2006).
¶ 29 Moreover, our supreme court has noted: “[d]emeanor constitutes a legitimate race-neutral reason for exercising a peremptory challenge.” People v. Easley, 192 Ill. 2d 307, 327 (2000); People v. Williams, 209 Ill. 2d 227, 247 (2004). Furthermore, a potential juror‘s sarcastic responses during voir dire have been recognized as sufficient evidence of demeanor justifying a peremptory challenge. Jones v. Rockford Memorial Hospital, 316 Ill. App. 3d 124, 129 (2000).
¶ 30 At this point, “the process moves to the third step, where the trial court must determine whether the moving party has carried his burden of establishing purposeful discrimination.” Mack, 371 Ill. App. 3d at 44. This court has previously summarized the analytical process at the third step–in the context of a criminal appeal–stating:
“at the third stage of the Batson analysis, the trial court ‘weighs the evidence in light of the prima facie case, the prosecutor‘s reasons for challenging the venireperson, and any rebuttal by defense counsel. [Citation.] The court must determine whether the defendant has met his or her burden of proving purposeful discrimination.’ [Citation.] It is at this step ‘that the persuasiveness of the justification becomes relevant‘[citation], and the trial court must assess the genuineness of the State‘s explanation along with the State‘s credibility in offering the explanation [citation]. The trial court is free to consider all the circumstances of the trial, evaluate the prosecutor‘s credibility, and reexamine the explanation offered by the State. [Citation.] ‘The trial court must make ” ‘a sincere and reasoned attempt to evaluate the prosecutor‘s explanation in light of the circumstances of the case.’ ” ’ [Citations.]” People v. Martinez, 335 Ill. App. 3d 844, 853 (2002).
¶ 33 Thus, in addressing a Batson challenge, the trial court must follow a “methodical three-step approach ***.” People v. Davis, 233 Ill. 2d 244, 249 (2009). First, the moving party must meet the burden of establishing a prima facie showing that a peremptory challenge was made on the basis of race. Only if such a prima facie case is made does the process move to the second step, where the burden is shifted to the nonmoving party to provide a facially race-neutral explanation for excusing the venireperson. Finally, only after the nonmoving party states its explanation for excusing the venireperson in question, does the process move to the third step, where the trial court must determine whether the moving party has met the ultimate burden of establishing purposeful discrimination. Mack, 371 Ill. App. 3d at 44.
2. Analysis of the Trial Court‘s Findings
¶ 34 ¶ 35 In this case, we perceive a number of ways in which the trial court‘s consideration of plaintiffs’ Batson challenge to the exclusion of Ms. Riley from the jury failed to properly follow the specific, three-step analysis outlined above.
¶ 36 We first consider how this issue was initially handled at the time of jury selection. At that time, plaintiffs noted that both of Dr. Schacht‘s peremptory challenges were used to exclude African-Americans, and “there‘s nothing particularly outstanding in something either of them said that made–expressed animus towards doctors or favoritism towards plaintiffs.” Plaintiffs maintained Dr. Schacht should, therefore, have to show excluding Ms. Riley was a “race neutral decision.” Dr. Schacht then indicated Ms. Riley was excused because “when she was asked about her [health] care that she‘s received in the past, she said it was all right. The sarcastic way in which she said it bothered me, and that‘s why I‘m getting rid of her.” The trial court denied plaintiffs’ Batson challenge to Dr. Schacht‘s peremptory challenge to Ms. Riley at that point, explaining: “I can see with 21 [Ms. Riley] possibly you‘re saying you believe that for – the comment about her healthcare with doctors shows some kind of bias because you thought it was a sarcastic answer.”
¶ 38 We have similar concerns with the Batson analysis–as to Ms. Riley–contained in the trial court‘s written order denying plaintiffs’ posttrial motion. As noted above, during this analysis, the trial court stated it had previously misunderstood the factual context of Dr. Schacht‘s challenge. Upon further review, it found the record did not contain support for Dr. Schacht‘s contention that Ms. Riley made a sarcastic response to the group question posed by counsel for Dr. Moswin. In fact, no verbal response from any of the prospective jurors was recorded. Moreover, the trial court noted that Dr. Schacht did not follow up on any concerns he might have had by asking additional questions of Ms. Riley before striking her from the jury. After considering these facts, the trial court ultimately found, “[a]fter reflecting on the matter, the Court finds that the Plaintiff[s] made a prima facie case under Batson with respect to Ms. Riley #21. The defendant failed to provide a race neutral explanation for excluding Ms. Riley by the manifest weight of the evidence[.]”
¶ 40 The trial court‘s order also appears to indicate a finding at stage two, that Dr. Schacht‘s proffered reason was not supported by “the manifest weight of the evidence,” or was not “genuine.” The trial court may, therefore, have also collapsed the second and third steps of the Batson analysis. As noted above, the second step looks only to the facial validity of the proffered reasons for a peremptory challenge, and “[i]t is not until the third step that the persuasiveness of the justification becomes relevant - the step in which the trial court determines whether the opponent of the strike [here plaintiffs] has carried his burden of proving purposeful discrimination.” Purkett, 514 U.S. at 768.
¶ 42 However, a number of aspects of the trial court‘s analysis at step three raise concerns. Indeed, portions of the trial court‘s step-three analysis seem to indicate: (1) the trial court did not believe that the improper exclusion of a single juror would not require a new trial, so long as other evidence indicated defendant received a fair trial; and (2) plaintiffs had a burden to show a pattern of purposeful discrimination in jury selection at step three.
¶ 43 Specifically, at one point the trial court stated Dr. Schacht‘s proffered reason for excluding Ms. Riley “does not pass muster.” The trial court went on to state, however: “[a]s long as the resulting jury is fair and unbiased, then it is unnecessary to call for a retrial because of a small procedural error during the jury selection process.” The trial court further found that the relevant precedent did not establish “a single excluded juror issue [is] a mandatory violation of Batson,” and it “may consider whether the jury ultimately seated in a case [is] consistent of a representative number of jurors from the black community.” Finally, the trial court found plaintiffs had not met their burden to show a “pattern [of] purposeful discrimination.” (Emphasis added.) These portions of the trial court‘s analysis appear to indicate an imprecise understanding of the three-step Batson analysis, and run afoul of the well-established proposition “that the exclusion of even just one minority venireperson on account of race is unconstitutional and would require reversal ***.” Harris, 129 Ill. 2d at 175.
¶ 45 Where there has been an apparent failure to conduct the proper Batson analysis, we are required to “remand this cause to the trial court for an expedited hearing for the limited purpose of allowing the trial court to conduct the proper Batson analysis ***.” People v. Martinez, 317 Ill. App. 3d 1040, 1046 (2000). This three-step analysis should be limited solely to a consideration of the peremptory challenge to Ms. Riley, as this is the only Batson challenge plaintiffs have raised on appeal. Moreover, the trial court need not conduct an evidentiary hearing on the matter, but, rather, should make complete findings of fact and conclusions of law–consistent with this order–“on the record as it now exists.” Id. Because we are remanding for further Batson proceedings, ” ’ “the correct procedure” is for this court to withhold disposition of other unrelated issues, retaining jurisdiction to consider them after the Batson proceedings.’ ” Id. (quoting People v. Ramirez, 230 Ill. App. 3d 231, 238 (1992)). We, therefore, do not consider the evidentiary challenges plaintiffs have raised on appeal at this time.
III. CONCLUSION
¶ 47 ¶ 48 For the foregoing reasons, we retain jurisdiction over this matter, but remand this cause to the circuit court of Cook County for proceedings consistent with this order. The mandate shall issue forthwith.
¶ 49 Remanded with directions.
¶ 50 Mandate shall issue forthwith.