*1 acquiesced Page County that defendant action in Du defending and, therefore, should not be allowed to invoke the doctrine of res judicata manifestly unjust view the result which denies plaintiff Benton v. Smith any remedy (See whatsoever. Ill. 847, 856, that, 952, 958.) 510 N.E.2d We are persuaded doc contrary policies underlying conclusion would not serve the trine of res judicata protection harassment — Torres, Ad promotion judicial 814 F.2d at economy. ams, 442-43, 104 411 Ill. at N.E.2d at 273. judicata res view of determination that doctrine
does bar the cause of action in damages contract the circuit Page court of Du County, argu- we need not address plaintiff’s third ment that the applies to this case. principle equitable estoppel
Accordingly, judgment reversed, the circuit court is cause is remanded for proceedings. further
Reversed and remanded. UNVERZAGT, JJ.,
INGLIS and concur. ILLINOIS, THE OF THE PEOPLE STATE OF Plaintiff-Appellee, v. JONES, BRENDA Defendant-Appellant. M.
Second District No. 2 — 87—0002 22, 1988. Opinion filed December *2 UNVERZAGT,J., concurring. Hamill, Appellate of State De- Kathleen J. both Joseph
G. Weller and Office, Elgin, appellant. for fender’s of Johnson, Attorneys, of Geneva Casey Gary E and V.
Robert Schneider, Attorneys both of State’s Cynthia (William L. Browers and N. Office, counsel), People. for the Prosecutor’s Appellate of the court:1 opinion REINHARD delivered the JUSTICE Jones, following a Defendant, guilty Brenda M. was found delivery sub court of Kane unlawful County trial in the circuit Stat. (Ill. Rev. grams less than 15 cocaine containing stance probation a 30-month sentenced to 56½, 1401(a)(2)). She was ch. par. eval drug a and alcohol term, conditioned, receiving in part, upon ary her fol Center and Diagnostic County the Kane uation from treatment. course of lowing its recommended re- (1) whether she should two issues: raises appeal, On findings made because, judge new trial ceive a failed to pro- determination to a amounted challenge only his peremptory neutral explanation vide published 3d 208. opinion at 185 Ill. 1Supplemental venire, person he mo- misapplied law and denied her mistrial; tion for (2) the trial court dele- improperly gated its sentencing defendant, as a condition authority by ordering to probation, submit to a evaluation and to drug program comply with any treatment recommended the program. dire, voir
During prosecuting attorney peremp- exercised Sivels, tory challenge against Donald black member of asked, venire. Defendant also black. At defense counsel point, to Kentucky L. pursuant 476 U.S. Ed. 2d 106 S. Ct. an hear as to was explanation why Sivels excused. He noted that defendant and Sivels were of an identifiable racial grouping, venire, that Sivels the only was black man in the him allowed to shift the burden to the explain challenge. he it judge responded believed was to the assist- up offer
ant State’s he excused Attorney why stated, The assistant State’s that he regard, lenged Sivels when Sivels because demonstrated answer- hesitancy ing questions concerning whether or not feelings he had strong about of illegal drugs. sale or He possession further maintained that he was concerned because Sivels previously had served on civil jury was and that he afraid Sivels would confuse burdens between *3 civil and criminal cases. time,
At that, that the trial judge stated he was not to- familiar with the tally decision, believed, he on the ques- based tioning Sivels, and answers of there a of showing had been cause to excuse He also if noted that he had the assistant been State’s he not have Attorney, would excused Sivels use of a pe- challenge. Defense counsel then moved for mistrial remptory a motion, was denied. defendant’s denying judge stated that the a right assistant “has to make peremptory lenges has right.” and he exercised that Defendant was subsequently and, found as guilty, no issue is raised on the trial we proceedings, need not summarize the evidence adduced.
In Batson v. Kentucky 79, 69, 476 L. Ed. U.S. 90 2d 1712, 106 S. Ct. the Supreme United States Court held that a defend prima ant establish a case of in may purposeful discrimination facie the jury prosecuting selection on the basis of attorney evi relating prosecutor’s dence to the use at challenges of peremptory (Batson, 96, 87-88, trial. 476 at L. Ed. at defendant’s U.S. 2d 106 1722-23.) further, that, Ct. at The court in S. stated order establish prima must that she a a demonstrate facie has used prosecutor and that the group racial cognizable member from the that group remove members of challenges peremptory that the existence the fact is entitled rely venire. Defendant of a mind to discrimi challenges those who are of enables peremptory Defendant must show that in the selection to do so. jury process nate that the prosecu facts raise an inference these and other relevant venire to exclude challenges tor used members peremptory 96, L. Ed. their race. 476 U.S. at on account of 87-88, 106 at 1723. at S. Ct. in strikes on the pattern part
The court stated a race rise to might give defendant’s prosecutor against discrimination, and the state- prosecutor’s an inference of purposeful or refute during might support voir dire either questions ments 88, Ed. S. Ct. at (476 at 90 L. 2d at such an inference. U.S. further stated: 1723.) have confidence examples are illustrative. We merely
“These
dire, will be
supervising
voir
judges, experienced
if
circumstances
concerning
prosecutor’s
able to decide
case of
challenges
prima
use
creates
a
facie
peremptory
[ste]
at
90 L.
against
discrimination
476 U.S.
Ed.
jurors.”
Our has elaborated relevant recently deciding trial court consider in whether a defend- may cumstances a of discrimination. In ant has established 50, 63, the court stated that such relevant against circumstances include: a of strikes “pattern” jurors; during and statements voir dire and exercis- prosecutor’s questions challenges use of ing challenges; disproportionate his as com- blacks; representation the level of black the venire against heterogeneous excluded blacks are pared jury; *4 characteristic; only as race of race their common the group sharing victim; the and and race the witnesses. Evans the defendant venirepersons because black are emphasized simply pe- court the challenged does not alone raise inference of discrimina- remptorily A must 63.) 125 Ill. 2d at court avoid decid- (Evans, arbitrarily tion. ing question this of blacks peremptorily number Evans, lenged. 125 Ill. 2d 64. the Batson
Furthermore,
court,
the
court,
as did
empha
that the
sized
initial determination of whether a defendant has estab
is
lished
left to the trial
who is in
judge,
superior
position
the prosecutor’s
determine whether
use of peremptory
challenges was
(Evans,
motivated.
125 Ill.
In
racially
Evans, the
that “[tjrial
court noted
are
suited
judges
especially well
to make this determination because
are familiar with
condi
they
local
tions
can
their
prosecutors,
and
and
draw
power
observation
guide
and
judicial experience
distinguishing
as
a true case
dis
one.” (Evans,
crimination from
a false
Based
v. Evans
125 Ill.
(1988),
of our
court’s decision in
the Parker decision
50,
which holds
agree
part
we do
with that
all
time
members of defendant’s
race have been excluded
prima
jury
defendant has established a
case.
facie
court
identified numerous relevant circumstances
determining
be considered
the trial court
in
whether a
may
defendant has raised an inference of discrimination in the State’s use
peremptory
challenge against a black member of
venire.
(Evans, emphasized
The court further
prima
from
deciding
solely
must avoid
issue
arbitrarily
facie
(Evans,
Ill. 2d
peremptorily challenged.
number
blacks
in Batson 64.) We note also that
used his
venire,
challenges to strike all four black
on the
and a
persons
Court
in
composed only
persons
Supreme
white
was selected.
Batson did not
prima
pur
conclude that a
automatically
facie
but, rather,
discrimination
poseful
was shown
remanded the case to
established,
the trial court with instructions
to determine
the facts
if
and,
facie, so,
discrimination
if
prose
cutor came forward with a neutral
his actions.
90, 106
1988),
Circuit,
843 F.2d
and the Ninth
v. Vaccaro
Cir.
816 F.2d
that a
(9th
1987),
declined to hold
case is
established when the
automatically
only black
of the venire are
excused
peremptorily
prosecution, whereas
the Tenth Circuit in United
v. Chalan
States
1987),
Cir.
812 F.2d
(10th
1302, held that exclusion of the
members of defendant’s
race on
the venire
the reasons for the
required
prosecution
explain
pe
State
decisions have
remptory challenges.
appellate
adopted
Several
e.g.,
Mitchell
State
See,
295 Ark.
the latter view.
Pearson v. State
Com
374;
(Fla.
1987),
514 So. 2d
S.W.2d
monwealth McCo rmick
359 Pa.
We do not the fact that the has pe- all remptorily challenged venirepersons not relevant *6 trial court’s determination of whether defendant has demonstrated an inference of discrimination sufficient to establish a case. supreme court although listing an extensive number of relevant circumstances which might be considered a trial by judge in this regard, did not establish that list as exclusive. We believe that re- moval all black venirepersons through the use of peremptory chal- lenges relevant to the issue of discrimination under Batson and as such should along be considered with all other relevant circumstances in determining whether a defendant has established a prima facie case of discrimination. our decision on the issue,
Because
we do not address
defendant’s sentencing
We,
issue at this time.
therefore,
remand to
the circuit court of Kane County
conduct,
with directions to
pursuant
Batson,
expedited hearing
permit defendant
to present evi
dence to
claim
substantiate her
and to submit its
findings
fact and
conclusions of law
to that
pursuant
hearing,
together
record,
with the
to this court within 60 days. We retain jurisdiction for the
purpose
reviewing the trial court’s determination
following Batson hearing,
defendant and the State will be allowed to
supplemen
submit
tal
addressing
briefs
issue in this court. See
People Buckley
405, 411-13,
App. 3d
Remanded with directions.
LINDBERG, P.J., concurs. UNVERZAGT,
JUSTICE specially concurring: I agree majority with this matter must be remanded to for a the circuit court of Kane County hearing. I do agree not People v. Parker with the view that this court’s decision in majority’s 670 court’s de-
(1988), 166 Ill.
is undermined
App.
by
cision in People
v. Evans
“Simply because black veniremen are peremptorily challenged not, more, does without raise the or inference of dis- specter crimination. 476 U. S. at L. Ed. 2d at 106 J., S. at (White, unconstitutional, Ct. concurring) (it is more, without to strike one or more from blacks Peo- jury); ple Hooper (1987), J., Ill. 2d 247-49 (Ryan, (the court concurring) must avoid arbitrarily deciding this deli- cate question solely the number of blacks peremptorily challenged); Phillips (Ind. 1986), v. State 496 N.E. 2d (use of peremptory challenges against jurors not, does itself, raise an inference of racial discrimination).” 125 Ill. 2d at Nothing expounded this court in the Parker disagreed with above court dissertation. In Parker this court determined “that time that all of defendant’s race have been excluded from the the final ele- jury” ment constituting case has been met defendant. It is then incumbent the State to articulate a neutral explana- tion for the strike of the jurors. (Parker, 166 Ill. The Parker hand, like the case at involved the exclusion of the only juror.
In the case of (10th 1987), United States v. Chalan Cir. 812 F.2d 1302, the United States Court of held that the fact the Appeals gov- ernment peremptory challenges remaining used its to strike the last “ *7 juror of defendant’s race is sufficient ‘to.raise an inference’ that the race,’ was excluded ‘on the fi- juror thereby satisfying account [his] Id.” 812 portion nal Batson test. F.2d at 1314. not ruled on question.
Our court has The rule of stare decisis reasons requires compelling absent for so courts are or to an earlier doing, modify reluctant abandon (Moehle decision of the court soon after its v. Mo adoption. Chrysler tors 93 Ill. 2d As our court has Corp. (1982), pointed Moehle, out in and the bar of this State are entitled “[t]he rely upon lightly decisions with assurance that will be they Moehle, citing overruled.” 93 Ill. 2d at Graham General 1, 8; No. 43 Ill. 2d Chi United States Grant Post V.F.W. Shellaberger (1948), Trust cago Title & Co.