People v. Lann

ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF LANN, Defendant-Appellant. FRANKIE (2nd Division) No. 1 — 90—2966 First District April Opinion filed 1994.

DiVITO,P.J., concurring part dissenting part. and Foley, Michael Appellate J. Pelletier and Nan Ellen both of State Office, Chicago, appellant. Defender’s (Renee O’Malley, Attorney, Chicago

Jack State’s Goldfarband Barbara Jones, counsel), Attorneys, People. Assistant State’s for the opinion of the court:

JUSTICE SCARIANO delivered the charges of jury Lann was convicted on Defendant Frankie aggravated kidnapping, aggravated robbery, kidnapping, armed occurring May and was battery arising out of events appeal, we affirmed years’ imprisonment. prior sentenced to 13 On a sentence, remanded the case for a defendant’s convictions and but peremp- hearing improperly to determine if the State used jury. People from the tory challenges to exclude African-Americans 276, appeal denied Lann 381. hearing before following The facts were adduced the Batson and the victim were Judge Circuit John M. Mannion.1 Defendant African-Americans, at least of the two witnesses both as was one against using him. In seven of its 10 called the State by the State challenges, potential jurors excused six seven alternate, jury, including one petit were African-Americans. The women, men, one African- eight white two white consisted cards, man, African-American women. American and two evidence, that but for the which admitted into establish were characteristics, potential jurors excluded following three similar (1) noted, heterogeneous group: already six by the State were a (2) African-Americans; women; were were six of seven the seven (3) by the arguments One of the made all seven were unmarried.2 hearing in to defendant’s racial opposition at the Batson claim as to the justification in of the State’s discrimination claim and excluded of the six of the heterogeneity group of the was that five African-Americans were women. prima had not made out a

Judge held that defendant Mannion Batson, basing his decision under case of racial discrimination facie (1) of African-Americans following percentage factors: the on the percentage of African- almost identical to the petit the was (2) peremp- 7 of its 10 County; the State used Americans in Cook (3) challenge three African- challenges; State did not tory the ultimately one-fourth who formed American venire members (4) it was type juror in jury; the State had mind petit (5) where several cases for; judge presided had over looking and, to prosecutor Attorney question in was assistant State’s been accused had never even knowledge, prosecutor his excluding African-Americans. systematically Genesen, presided trial who over defendant’s Judge Lawrence 1 Circuit hearing in this case. was held before the Batson retired actually separated from her was venire members 2 Oneof the excluded husband. appeals Judge

Defendant Mannion’s determination that he did prima not make out a case racial discrimination under Bat- facie alleges He son. also for the first time that the State violated Batson during challenges his trial it improperly peremptory because used its petit jury, conceding to exclude women from the that he did not object prosecutor’s alleged gender during to the voir dire, post-trial motion, original appeal his or in the of his conviction, during hearing nor the Batson after we remanded case for purpose.

I A Prior to the United States Court’s decision Batson v. Kentucky (1986), 476 U.S. 90 L. Ed. 2d 106 S. Ct. a defen dant was entitled to a reversal of his conviction in a case where the practiced had purposeful racial discrimination in the jurors only by selection of establishing systematic the State’s pattern excluding intentional ground venire members on the case, race in circumstances, "case after whatever whatever (Swain crime and whoever the may defendant or the victim be.” Alabama 13 L. Ed. 2d 85 S. Ct. 837.) Batson, however, expressly overruled Swain and held that may defendant prima establish a purposeful case of discrimi facie nation in the selection of petit jury solely prosecu based on the (Bat tor’s peremptory exercise of challenges at the defendant’s trial. son, U.S. at 90 L. Ed. 2d at 106 S. Ct. at In Griffith v. Kentucky U.S. 107 S. Ct.

Supreme Court declared that the rule in applies Batson to all cases which pending were on direct review at the time that it handed down its Batson decision. This is such a case. two-step procedure established a resolving defendant’s

claim that the prosecution challenges used its in a racially First, discriminatory manner. the defendant must establish a prima purposeful case of discrimination in the selection of his jury, and if he or she making succeeds in such the burden then shifts to the State to come forward with a race-neutral explanation for challenging Batson, venirepersons. each of the 96-97, U.S. at 90 L. Ed. 2d at 106 S. a. at 1723. In order to establish a prima discriminatory jury case of facie Batson,

selection under initially a defendant had to show that he was a cognizable member of a group racial and that prosecutor the had exercised peremptory challenges his to remove members of the

460 96, (Batson, 90 L. panel. 476 U.S. at race from the venire defendant’s 1723.) however, the United 87, Subsequently,

Ed. 2d at 106 S. Ct. at (1991), 400, Court, in v. Ohio 499 U.S. Supreme held Powers States 1366, 411, 419, 1364, "a de 402, 111 that criminal 113 L. Ed. 2d S. Ct. through jurors effected may object to race-based exclusions fendant defendant and the challenges whether or not peremptory a prima race.” In order to make juror excluded share the same facie Powers, required to the defendant is showing of after peremptory prosecutor exercised only an inference that raise An upon (People race. v. challenges venire members based to remove 1133.) so, doing (1992), 588 N.E.2d drews 146 Ill. chal rely peremptory the fact that entitled to the defendant dis practice permits those to lenges a selection "constitute ” (Batson, at 476 U.S. a to discriminate.’ who are of mind criminate Avery Georgia quoting at v. at 106 S. Ct. 559, 562, 73 S. Ct. (1953), 97 L. Ed. cir any other relevant this fact and must show defendant peremptorily raise an inference cumstances Batson, 476 U.S. of their race. challenged venirepersons on account 87-88, 106 S. Ct. at 1723. at 90 L. Ed. 2d at provided has not States Court Although the United should consider that a trial court list of factors an exhaustive case prima has made out deciding whether defendant facie consistently discrimination, has Supreme Court the Illinois racial which circumstances” following indicia as "relevant identified making prima determination: should consider trial courts facie (2) (1) jurors; against African-American of strikes pattern during voir dire exami made and statements prosecutor’s questions (3) disproportionate use challenges; exercising his and in nation (4) African-Americans; the level of challenges against compared to the venire as representation African-American heteroge (5) were African-Americans whether the excluded jury; characteristic; their common sharing race as group neous v. (6) defendant, People witnesses. victim and the the race of the 1200, 1204; People v. 507, 514, (1993), 617 N.E.2d 155 Ill. 2d Coleman Andrews, 1127, 1135; (1992), 606 N.E.2d Ill. 2d Pecor 153 (1990), v. Henderson People 588 N.E.2d 1248-49; People Hooper v. N.E.2d Ill. 2d 684, 701-02; Mahaffey 1172, 1184; People v. Evans 388, 412, Ill. 2d 1360, 1365. 50, 63-64, Ill. 2d court as rel- occasionally identified factors Other (1) knowledge court’s the trial case are: prima evant to 435, (Andrews, prosecutors of local conditions and local 146 Ill. 2d at 1134; Evans, 67, 1366-67); 588 N.E.2d at 125 Ill. 2d at 530 N.E.2d at (2) prosecutor peremptory challenges whether used all of his 508, 701-02; (Hooper, 133 Ill. 2d at People 552 N.E.2d at accord v. (1991), 479, 490, Knott 224 Ill. 3d 586 N.E.2d appeal (1992), 640, 634, (1993), granted 145 Ill. 2d 596 N.E.2d vacated as moot ___Ill. (3) 2d ___, 611); and 621 N.E.2d whether the victim and the (Andrews, venirepersons stricken were of the same race. 146 Ill. 2d at 1137.) 425, Additionally, although 588 has prima warned that "mere numbers” do not establish a case facie (Henderson, 258, 1248; Mahaffey, 142 Ill. 2d at 568 N.E.2d at 128 Ill. 414, 2d at just 539 N.E.2d at "the exclusion of even one minority venireperson on account of race is unconstitutional (Andrews, require[s] reversal of the conviction below.” 146 Ill. 2d at 434, (1989), 588 N.E.2d at People v. Harris 380.) 357, Finally, 544 N.E.2d this court a reviews trial court’s deter mination as a to whether defendant has a prima established facie case of weight under the manifest of the evidence Andrews, 425, standard. 1133; Evans, 146 Ill. 2d at 588 N.E.2d at 125 64, Ill. 2d at 530 N.E.2d at 1365-66.

B Judge judgment Defendant contends that Mannion’s that he did present a prima case of racial against discrimination was facie weight evidence; the manifest contrary, maintains, on the he a consideration of the factors relevant a prima determination facie leads to the conclusion that the clearly evidence establishes that prosecutor peremptorily jurors race, dismissed on account of their and that the trial court considered factors a prima irrelevant agree. determination. We cannot The first factor relevant to our consideration is whether there " was evidence a 'pattern’ against (Evans, of of jurors.” strikes black 63, 125 Ill. 2d at (1991), 530 N.E.2d at In People Hope v. 137 430, 849, 560 N.E.2d (1991), vacated on other grounds 1202, 2792, 111 (1992), S. Ct. reh’g 147 modified Ill. 2d 589 N.E.2d explained: the court

"To pattern, create a occasionally strikes should do more than involve venire members a of certain race. The strikes should affect those degree members to such a apparent or with such a lack of explanation suggest nonracial possibility as to of racial Hope, motivation.” 137 Ill. 2d at 560 N.E.2d at 864. Andrews,

Accord 146 Ill. 2d at 588 N.E.2d at 1134. In this struck six of the nine African- 462 against the it have been do not deem to

Americans in the venire. We court to have concluded weight for the manifest of evidence against African- pattern a of strikes figures not constitute these did 288-91, Henderson, 142 Ill. 2d at Compare venirepersons. American (6 venirepersons struck of 11 African-American N.E.2d at 1249 568 (1990), strikes); 139 People v. Garrett pattern of did not constitute (six nine African-American 791 of Ill. 2d strikes); People pattern not constitute venirepersons struck did (two 230-31, N.E.2d, 129 Ill. Brisbon not constitute venirepersons struck did three African-American Harris, N.E.2d at strikes), with pattern of (15 from con- venirepersons struck African-American of 17 Ill. 2d strikes); People v. Mack pattern stituted (13 venirepersons 14 African-American strikes); v. McDonald pattern struck constituted (16 16 African- 196-97, 1357 of 2d 530 125 Ill. People v. pattern); a struck constituted venirepersons American (15 803-04, 568 557 N.E.2d (1990), App. 199 Ill. 3d Johnson pattern); a constituted venirepersons struck African-American of 17 417, 422, 505 N.E.2d App. 3d v. Seals 153 Ill. (six a struck constituted venirepersons African-American of seven pattern). and during voir dire by prosecutor made

The statements relevant second factor challenges constitute the exercising his while following charges that the Defendant prima determination. facie his during voir dire evidenced by prosecutor made statements against African-Americans: to discriminate intent Defense has thing So far the only one to add. "Judge, I have just I want the record .they all are White. people, six excused to reflect that. individuals, excused nine the defense simply add that I would White, or White.” one Oriental seven were

of which he when these statements on did not comment Judge Mannion simply as however, interpreted they can be clearly, ruling; made his game "a of black playing instead of the record attempt preserve especially true This is by defendant. tag” suggested white comments light court’s remarks are considered when the previous history gained knowledge prosecutor’s of regarding trials. case is establishing prima relevant The third factor peremp- of number disproportionate used prosecutor

whether different inquiry is This against African-Americans. challenges tory engaged pattern question prosecutor from the of whether the analysis against proportionality strikes African-Americans. against compares peremptories the number used African- whites, against Americans versus the number used whereas pattern analysis number of African-Americans compares challenged peremptorily versus the number of African-Americans been, not, See McDon- that could have but were struck the State. ald, 125 Ill. 2d at 530 N.E.2d at 1357. bar, prosecutor peremptory challenges

In case used six against venirepersons against African-American and one a white ve- nireperson juror. question, precedent There is no based either or sense, prosecutor’s common but use six of seven strikes against "disproportionate pe- African-Americans use of constitutes challenges.” See, Andrews, remptory e.g., (eight eight against N.E.2d at 1136 peremptories used blacks disproportionate); People v. App. Gaston 227 Ill. (four peremptories against 133-34 of five used blacks

found to a disproportionate peremptories); constitute use of People v. Nicholson

(five amount). against disproportionate seven strikes blacks consider,

The fourth factor which we and one that our "highly (Andrews, has found to be relevant” 146 Ill. 2d at Hope, N.E.2d at 137 Ill. 2d at 560 N.E.2d at venirepersons whether the excluded awere hetero- geneous group sharing race as their common characteristic. bar, the case at the evidence demonstrates the excluded ve- nirepersons following shared the being two common traits besides (1) African-American: six venirepersons of the seven excluded were (2) women; and all of the excluded members were unmarried. While part we hold in II of opinion this the former characteristic (gender) is not a constitutionally permissible excluding basis for potential jurors, supreme our court has found the latter characteristic (marital status) acceptable to be an reason peremptorily (Henderson, challenging venire members. Ill. 2d at 1244.) Accordingly, N.E.2d at "highly we find it relevant” that the excluded venire members shared common characteristic besides being of the same race.3 supreme fifth factor our important court has identified as Judge "collapsed” hearing

3 Defendant contends that Mannion the Batson by allowing explanations pe the to articulate race-neutral for his (See remptory challenges prima stage. at the Hernandez v. New York facie 1859, 1864; People 111 S. Ct. establishing African- prima determination is the level of facie jury. In representation compared

American in the to the venire in percentage panel this the of African-Americans the venire (9 approximately percentage was 32% of while the of African- (3 13). petit jury supreme was 23% of Our Americans the *** suggestive] "slightly has identified such a 9% difference as [of] ” (Henderson, purposeful discrimination. 142 Ill. 2d 1250.) Therefore, percentage we likewise consider the N.E.2d at slight discriminatory intent difference here evidence of prosecutor. consistently supreme that court has taken

Another factor presented determining whether a defendant has into consideration defendant, the victim and the prima case is the race facie defendant, victim, Here, and at witnesses. it is uncontested that African-Americans. The least one of the witnesses who testified were "in a where both the de- Illinois Court has stated that case black, characteristics do not are their racial fendant victim inference, stage, prosecution at the that prima warrant facie Henderson, against who were black.” discriminated venire members 568 N.E.2d at 1249. remaining supreme which the Finally, considering factors occasionally pertinent prima to a determi- court has found to be facie nation, knowledge of local employing his we note first conditions, African- Judge percentage Mannion observed to the County as a whole was almost identical Americans in Cook petit jury: 25% to 23%. The percentage of African-Americans on prosecu- stated, experience with local judge respect also with to his Attorney in this tors, State’s he had never known the assistant challenges on the basis discriminate in his use of case to of race. facts, Judge we hold that all of these

Taking into consideration a prima failed to establish decision that Mannion’s defendant facie against weight manifest of the ev- was not case of discrimination idence. Defendant’s

v. Mitchell that the State apparent from the record argument warrant. It is is without of the factors our merely asserting as to one was that the evidence discrimination, highly prima case of racial relevant to court has found against venirepersons, militated i.e., heterogeneity of the excluded position. defendant’s

465 II A argues that in this case violated Defendant also by using challenges women from peremptory Batson his. to exclude any petit jury, an issue he has not raised heretofore in of these gender- proceedings. argues apply that to State Batson does does, discrimination, based and that even if it defendant has waived by failing juncture such a claim to raise it until this in the case. De- waiver, us, gender- urges any fendant in the event we find to notice jury based discrimination in the selection of his under the error 615(a). 615(a). provisions of Court Rule 134 Ill. 2d R. first, Addressing argument that State’s waiver it is clear waived, defendant purposes appeal, has the issue of discrimination, alleged object for a defendant must both to an error bring at trial and the error to the attention of the trial court in a post-trial preserve appeal. motion in order to the issue for (People v. 1129-30.) Enoch 122 Ill. 2d 522 N.E.2d Our recently necessary court has found it to reiterate what it invariably has previous held several cases: that a fail defendant’s object prosecutor’s ure to to a a peremptory challenge use of before jury challenge is sworn results in a waiver of claim that impermissibly (Pecor, was exercised. 153 Ill. 2d at 606 N.E.2d at 1135; Henderson, accord People 568 N.E.2d at 1025, 1028; v. Andrews 132 Ill. 2d Ev 1364.) ans, 61-62, 125 Ill. 2d at 530 N.E.2d at explained As the court "[requiring timely objection in Andrews-. before the has been sworn and the venire dismissed allows a trial court to conduct a hearing while the venirepersons present chosen and stricken are still begun.” (Andrews, 457-58, and before the trial has 132 Ill. 2d at Pecor, N.E.2d at principle, the court reaffirmed this first Evans, espoused stating: 50[, 1360],

"[1]n v. Evans this court found that a defendant had waived the to contest the peremptory challenge juror by State’s failing object of a black juror’s challenge, though to that even the case was tried before this, concluding Batson had been decided. In the court noted that requires timely objection that the defendant make a prosecutor’s challenge. note that [Citations.]’ We requires legitimate Powers defendant raise a and well objection[ founded ].’ [Citation.] [Defendants [in cases] other objection simply who made no cannot now create whatsoever go attempt prove prima claims and back to the trial court and Pecor, case of discrimination.” 153 Ill. 2d at at 1135. above, brought present appeal As noted not until he did de- any challenges object prosecutor’s peremptory fendant here ground discriminating against venirepersons he was on gender. Accordingly, the basis of defendant has waived the issue. defendant, however, waiver, agree despite We with his recognizing unique qualify circumstances of this case for our the (134 "plain discrimination issue under the error rule.” Ill. 2d 615(a).) cases, reviewing Generally, permits R. in criminal that rule a properly preserved court to consider an error not for when review magnitude closely the evidence is balanced or the error is of such impartial defendant a fair and that the commission thereof denies the (1991), (People trial. v. Shields 143 Ill. 2d 575 N.E.2d 543; (1989), People Young v. 128 Ill. 2d 538 N.E.2d convenience rather Since the waiver rule is one of administrative (1985), 327, 333, jurisdictional (People a bar v. Smith 106 Ill. 2d than 357, 360), errors not 478 N.E.2d we have the discretion to consider (1977), preserved v. 66 Ill. 2d properly (People at trial McCullum 307, 311; (1993), App. 263 Ill. 3d People 362 N.E.2d v. Beard 1077, 1081; (1990), 944, 949, App. 557 N.E.2d People Knop v. 3d (1990), 970, 973, People denied 135 Ill. 2d 564 N.E.2d appeal 842, 846), (1989), 949, 956, Ill. 539 N.E.2d v. Burrows (1991), may plain sponte. People the error rule sua v. Davis we invoke 240, 251, Ill. 2d 582 N.E.2d 719. supreme recently exactly court cause to do what we do Our had today plain rule in order to consider employed here when it the error Batson, had challenge a claim which the defendant based on In v. Hudson indisputably People waived in the circuit court. 401, 425, Bilandic, writing major- for the 157 Ill. 2d now Chief Justice court, argument the defendant’s ity rejected the State’s of the issue, of the precluded claim review preserve failure to his Batson explaining: long recognized responsibility of

"[T]his court has just for maintenance of reviewing for a result and court body may override the precedent sometimes sound and uniform nature of that stem from the adversarial considerations of waiver light importance of the system.’ of the [Citations.] our defendant, [his we choose to review raised constitutional claim justice.” in interest of claim] Batson our first instance which Although Hudson is the violation, that de- alleged waiver of excused a defendant’s court, change cisión not a radical course for the but rather is logical holdings in represents merely a extension of the other cases arguments alleged in which it considered waived that addressed (See protections. People v. Lucas denials of vital constitutional (invoking plain 151 Ill. 2d error rule to review claim that he was denied his sixth the defendant’s waived witnesses); fully amendment cross-examine State’s (invoking Chandler plain error to review defendant’s constitutional claim properly preserved ineffective which was assistance counsel appeal).)4 The same fundamental constitutional concerns encountered appeal, Hudson are raised defendant on albeit waived in both Hudson, Accordingly, authority cases. consistent with we exercise our disregard his waiver and instead choose to consider defendant’s respecting allegedly gender-biased contentions pe- State’s use of remptory challenges.5

Moreover, part opinion, as we discuss in B of this we find because gender-based selecting jury disgracefully impugns integrity judicial process, imposition Henderson, error in the proper. instant case is all the more (plain may "remedying 568 N.E.2d at 1259 error if apply ”) 'necessary error preserve integrity judicial process’ addition, simply 4 In prevalent we further note that Hudson affirms practice that, consistently recognized in this court where we have like other appeal, challenges plain analysis. claims on Batson are amenable to error Beard, 1079; E.g., App. (1990), People App. 263 Ill. 3d at v. Batchelor 202 Ill. 948, 952, (1990), appeal 559, 3d 559 N.E.2d denied Ill. 2d 564 840; (1990), 967, 972, 569, People App. N.E.2d v. Lott 196 Ill. 3d N.E.2d 572, (1990), appeal People denied 132 Ill. 2d 555 N.E.2d v. Mitchell (1987), 500, 507, App. appeal 163 Ill. 3d 516 N.E.2d denied App. Ill. 2d 522 N.E.2d v. Brown 152 Ill. 998- (Ala. 397, 398; 1992), parte accord Ex Adkins 600 So. 2d (Mo. 1068-69; State v. Davis 830 S.W.2d 472. invoking 5 Thedissent scolds us for error rule to address an precise previously issue which is different from the one for which we However, remanded this cause. we find no fundamental a difference between gender-based race, clearly claim Batson and one based on for both and precisely pertain impermissible jury to the issue of discrimination in the State, process. however, important, during selection More it was the the Bat- remand, hearing gender-discrimination son on introduced issue into seeking justify peremptory challenges against this case in to its use of African-Americans, pointing rejected venirepersons out that the shared being simply saying common characteristic of women. that the We are State may not run with the hares and the hounds at one and the same time.

quoting People v. Herrett 137 Ill. 17); Young, (purpose 538 N.E.2d at 471 see "protec[t] preserv[e] integrity repu- and plain error rule is to judicial process”). tation of the

Although supreme our court held in Evans that defendant object make a Batson claim where he does not to waives his during though potential juror the exclusion of the trial even decided, yet quite we are indeed faced with a different had not been Batson, Powers, situation here. Defendant’s trial was before any down that even hinted important, and most decision was handed gender-discrimination implicated concerns were any objected to the process. selection Had this or other defendant challenges State’s use of its to exclude venire members decided, account their before those cases were such frivolous, not, be if sadly motion would have been considered to derisive, indeed, controlling authority at that time to as no existed support it. Pecor, recognized rejected much in where it

Our review, for argument preserving not the record the State’s that he waived his Batson claim based on the facts the defendant had potential jurors were African- was white and that the excluded court, noting yet after that Powers had not been American. The Pecor trial, the time of the defendant’s stated: decided at where the law was clear: defendant could "This was an instance standing claim he had no to do so. not raise the Batson because here, Any attempt persist make a record or in his claim where been, time, contrary, clearly would have at the the law was have to Wedo not believe a should a waste of resources. defendant preserve an change in the law in order to anticipate an eventual require to burden review. Such a rule would issue defendants where the requests with to make records assertions the courts pro- they had no such claim. Such provided specifically that law courts, delay overly resulting in substantial cess would burden the added.) Pecor, injustice.” (Emphasis 153 Ill. 2d N.E.2d at 1133-34. ("At Coleman, at 1206 the time Accord because the tried, bring claim [Batson] was he could defendant otherwise, what was then any awareness of despite provided law claim”). bring expected in and Cole- by supreme court Pecor reasoning employed

The been an surely It would have equal with force here. applies man object to the for defendant judicial resources waste obvious in in since petit jury his trial women from the exclusion of in law for it. whatsoever been no basis clearly there would have errors not to consider of our discretion Accordingly, in the exercise (see McCullum, at trial preserved at properly magnitude of the constitutional at we hold that N.E.2d has on Batson, gender discrimination rights implicated in the effect fundamental fairness system, as well as integrity of our court recognize gender- his require to excuse defendant’s waiver us claim. based Batson gender- standing to raise his that defendant has

We also hold Powers, above, Supreme Court discrimination claim. As stated equal standing to raise the that a criminal defendant has held improperly excluded potential juror who was protection rights of group excluded same racial as the even if the defendant is not (Powers, at 111 S. at 113 L. Ed. 2d venireperson. 499 U.S. 1436.) Gross, court has Our Ct. at see De 960 F.2d need raise interpreted Powers to mean that a defendant challenges in a used his inference that manner; of the defen racially discriminatory the fact that the races him from juror preclude are does not dant and the excluded different (Andrews, raising challenge. 146 Ill. 2d at 1133.) Further, recently that Powers is the court has held (Pecor, 153 Ill. retroactively applicable to all cases on direct review. 1136.) Powers, principles 606 N.E.2d at enunciated then, clearly gender-discrimination in a context as well. apply the United States

Much the dissent is devoted to its belief that analysis Olano Supreme Court’s in United States v. 52(b) Federal of Rule 113 S. Ct. (Fed. 52(b)), fully is

Rules Criminal Procedure R. Crim. P. Supreme Court applicable equivalent to the Illinois contained (134 615(a)). 615(a) disagree, important for it is Rule Ill. 2d R. We upon it court is bestowed jurisdiction appellate note that the of our (Ill. VI, 6; see also Hamilton by our constitution Const. art. § (reasoning 290 N.E.2d 589 Corp. v. Alexander provided was jurisdiction Appellate the Illinois Court that since the altered)), juris constitution, legislatively while the it could not be granted to them appeals courts of diction of the Federal Tribunals Congress, power constitute "[t]o which does so via (U.S. Const., I, 8, art. cl. As inferior Court.”6 § Congress, such as promulgated by consequence, procedural rules adoption Judicial interesting of the 1962 to note that until the 6 Itis also Illinois, Constitution, Appellate like amending Court of Article the 1870 courts, legislature, and the a creature of the the Federal intermediate was 52, Rule mandatory precepts are controlling the conduct and the power of those courts. As the United States Court has noted precise context, is, in this in every pertinent "Rule 52 respect, as binding any duly as by Congress, statute enacted and [FJederal courts disregard have no more discretion they to the Rule’s mandate than *** disregard do to provisions.” constitutional Bank Nova Scotia v. (1988), 255, 250, 228, 237, United States 101 L. Ed. 2d 108 S. Ct. 2369, 2373-74. when, all, Rule 52 describes those instances if at a Federal appellate forgive may court a defendant’s waiver of an error rule, committed at In compliance trial. the absence of full with that any properly error not preserved cannot by be considered (or Thus, reviewing court. under the Federal approach, waiver more forfeiture) precisely of most trial imposes errors limitations on the appeals’ ability error, court of to correct or even to consider the limiting ability well as complain of the defendant about it. Both will be silenced unless 'plain’ "[t]he forfeited error and ” rights.’ Olano, 'affect[s] substantial 507 U.S. at 113 S. atCt. 1777. contrast, law, poses under impediment Illinois waiver no time, our By consideration of errors made at trial. this it has become reviewing rather common say for our courts what we have stated, i.e., previously "[t]he waiver rule is one of administrative (1985), jurisdiction” (People convenience rather than v. Smith 106 Ill. 327, 333, 357, 360; 2d 478 N.E.2d City Chicago accord Leone v. (1993), (Miller, C.J., dissenting); 156 Ill. 2d N.E.2d (1957), 360, 143 239; People v. Burson 11 Ill. 2d People v. Torres (1993), App. 1029; (1977), 252 Ill. Hayes 3d 623 N.E.2d v. People App. 54 Ill. legal principle 3d 370 N.E.2d which has no counterpart system. recognized in the Federal court It has been this parties State that the waiver rule is addressed to the that, instances, except they serves to warn them in limited if fail to issue, properly preserve they an appellate are not entitled to review (1992), (People of it. v. Lowe Ill. 606 N.E.2d see also (1981), People v. Walsh 101 Ill. ("The rule, however, upon waiver is not a limitation

reviewing parties”).) an This view of court but admonition to explains "plain quotation waiver error rule” taken the dissent (1978), People Precup Precup from v. 73 Ill. 2d 382 N.E.2d 227. The jurisdiction depended upon legislative grant. contours of its See Scott v. Free 999; Gallagher port Casualty v. Motor Co. 69 N.E. 962. rebuking appellate court, language, was by using the cited and which did waived which had been entertaining an issue court for advising error, rather was but standard for not meet Olano’s discretion, alleged declined, to consider why it in its the defendant preserved appeal. not been error which had 366(a) court, of Rules promulgating provisions supreme The 615(a) (134 615(a)), 366(a), granted us the has Ill. 2d Rules this issue and waiver of authority we need to excuse defendant’s 223, 230 N.E.2d reach its merits. In Hux Roben resolved appellate properly court the court found presented which had not been dispute byit means of defense before challenged that plaintiff In the court the the defendant. grant powerless was judgment, arguing appellate court by the defendants. remedy this since it had not been asserted 366(a) or rejected contention and held that Rule plaintiff’s 615(a), appeals, empowered in equivalent Rule its functional criminal reviewing considerations of waiver court "to override the system,” in to achieve adversary from the character of our order stem and for the mainte- paramount "responsibility just for a result Hux, uniform body precedents.” 38 Ill. nance of sound (1972), 225, 832; 52 Ill. 2d see also v. McAdrian 230 N.E.2d ("[The 688, not been 690 rule has waiver] rights are so universally applied[, for are matters and which t]here considered, initially they fundamental must be whenever raised”). (1993), App. 616 Norberg Corp.

In v. Centex Homes 366(a) the waived N.E.2d Rule and Hux to reach we invoked in yet important question of whether our court’s decision (1991), Welding Cyclops Corp. Kotecki v. retroactively even applied prospectively, was to be either or set, opposed be used to as

though we realized that the rule would maintain, Nevertheless, did so because we considered precedent. we bar, In we are desperate need of an answer. the case at the issue which, is at least as hoped, an issue it is to be confronted with willing i.e., are Norberg, whether we as State important as that in our soci recognize participation to full that women are entitled and, right serve as ety they not be denied the in this will a citi rights essential and duties of jurors, one of the most basic and deterred zen, gender. We should not be solely on the basis of their merely the issue vindicating women because from this vital legal package the dissent presented hypertechnical in the was not Therefore, exercise justice, interests of we necessary. thinks 615(a) power given us Rule as interpreted by Hux and reach w.7 question presented for our revie

B addressing gender-based the merits of defendant’s argument, we first note that while neither the United Supreme States Court nor the yet Illinois Court has decided as whether the Federal prohibits Constitution as well as racial discrimination in the peremptory challenges,8 use of several courts around nation have divergent addressed the issue and have reached results.9 (9th Compare 1990), United States v. De Gross Cir. 913 F.2d 1417 (Batson (9th applies gender discrimination), reh’g en banc aff'd 1992), (1991), Cir. 960 F.2d Di Donato v. Santini App. 232 Cal. (same); Rptr. (1990), Cal. State v. Levinson 71 Haw. (same); (1993), Tyler 795 P.2d 845 v. State 330 Md. 623 A.2d (same); Hyatt Commonwealth v. 409 Mass. (same); (App. State v. Gonzales 111 N.M. 808 P.2d 40 (same); (same); People v. Blunt 162 A.D.2d 561 N.Y.S.2d 90 (N.D. 1993), City (same); Mandan v. Fern 501 N.W.2d 739 State v. (same), Burch 65 Wis. 830 P.2d 357 with United precedential authority, 7 Evenin the absence of Hux as we would never here; compelled differently theless be to decide this no case than we do respond we implementation would further to the dissenter’s constrictive by bringing sagacity Spain’s greatest waiver to his attention the twentieth Machado, century poet Antonio who wrote: "Caminante, camino, hay no

se hace al camino andar.

Al andar se hace camino.”

which, translated, instructs:

"Wayfarer, way, there is no

you way you go. make the you go, you way.” As make the (Proverbs Verses) y Song reprinted Proverbios cantares Selected (Alan 1982). Poems of Antonio Machado 142-43 B. Trueblood trans. recently granted 8 TheCourt has a writ of certiorari to determine whether (Ala. applies gender-based App. Batson to discrimination. J.E.B. v. State cert, 1992), 156, (1993), 242, granted 606 So. 2d 508 U.S. 124 L. Ed. 2d 113 S. Ct. 2330. holding gender-based applies recent

9 Our Batson (1992), up App. was not v. Mitchell 228 Ill. 3d (1993), by (People 2d 614 held our v. Mitchell 1213), unnecessary reach that N.E.2d because it held that it was for us to question, constitutional as the cause could have been determined other Mitchell, grounds. 614 at 1218. 155

473 (Batson (5th 1993), does not F.2d 215 Cir. 987 v. Broussard States (4th Cir. discrimination); States v. Hamilton United apply to (Ala. 1992), So. 2d (same); 596 Murphy Parte 1988), 1038 Ex 850 F.2d (same) 948 (1993), Ark. 855 S.W.2d (same); 313 Tucker v. State 45 (1993), Ark. v. State by Missildine grounds on other overruled 1989), (Ky. App. Hannan v. Commonwealth 863 S.W.2d (La. 1988), App. 533 So. (same); Ct. State v. Adams S.W.2d 462 (Mo. (same); 1991), (same); 811 S.W.2d Pullen State v. (same); v. (1989), State 233 Neb. 444 N.W.2d State v. Culver (same). (R.I. 1987), Oliviera 534 A.2d 867 which have held that agree with those decisions

We discrimination, find a defendant’s for we applies gender-based is gender discrimination right jury chosen free of to be tried before jurors who are tried before important than his to be no less discrimination; equal protection clause free of racial chosen Indeed, what one must wonder offended both forms of exclusion. coun if it is to be read to vitality equal protection clause retains system justice criminal manipulation deliberate of our tenance the jury from service on by allowing litigants venirepersons to exclude gender. "Competence to serve as the basis of either race or Since qualifications individual juror ultimately depends on an assessment of at a trial” ability presented evidence impartially to consider (Batson, we fail 90 L. Ed. 2d at 106 S. Ct. 476 U.S. at gender to his or her fitness apprehend person’s the relevance of a consigned juror, subject appropriately more to serve as courthouse folklorists. grave that the suffragette

It no come from the to remind us needs continual, history system- jury system of our has been marked atic, and, exclusion of women. pervasive, sadly, more State-sanctioned law, juries from based on the

"At common women were excluded sexus, literally, propter the 'defect of sex.’ 2 doctrine of defectum Blackstone, Supreme Commentaries *362. In William jury to be un Court declared the exclusion of blacks from constitutional, service might be limited to but noted that such service (Strauder 303, 310, L. Virginia 100 U.S. men. West 57, 82, Hoyt Ed. v. Florida 368 U.S. excluding Supreme held that 82 S. Ct. Court equal process neither a due nor women from service was for it—that protection violation because there was rational basis family life.’ regarded as the center of home and women are still held that Id. at 82. It was not until 1975 that the Court systematically excluding juries violates defendants’ women from rights. Taylor [v. Louisiana Sixth Amendment See 698.]” S. Ct. United (9th 1992), States v. De (holding Gross Cir. 960 F.2d un- constitutional both the female a peremptory defendant’s use of challenge juror prosecution’s of a male and the challenge juror). of a female jury

Government-condoned exclusion of women from service was by no jurisprudence. means endemic to United States Court example, they gained right vote, For even after following had long campaign and arduous that led to the ratification Constitution, nineteenth amendment to the United States women being were still serving juries ground barred from on on the "that 'electors,’ the word [providing as used in the statute for the appointment jury making jury of commission and the of lists] means persons, only, male petitioner and the was not entitled to have her replaced upon jury name county.” list of Cook People Fyfe ex rel. 290, 292; v. Barnett 150 N.E. accord Welosky Commonwealth v. 276 Mass. 177 N.E. 656. King When the barons wrested it anew from John on the meadow Runnymede, provision Magna of the 39th clause of the Carta already was ancient law: that "no freeman shall be arrested or im- prisoned except by judgment peers,” precept lawful of his regarded that has been as the all indefeasible Americans long since before we attained nationhood. Unless we are now to revert period history holding to that aberrant in our when our courts were " 'peers’ jurors, only,” (Fyfe, term means male 319 Ill. at practice 150 N.E. at we cannot suffer a State-condoned allowing litigants venirepersons jury to exclude from on the service gender. basis of

Furthermore, in the context of pernicious selection is more under our State Constitution than it is body generated. under Batson and the law has of case it equal protection clause contained in the 1970 Illinois Constitution provides: abridged equal protection

"The of the laws shall not be denied or government and account sex the State or its units of local I, school districts.” Ill. Const. art. 18. § our v. Ellis scope court delineated the of that clause as follows: which, far, Constitution, "In thus does not contrast to the Federal Amendment, Rights Equal contain the the Constitution of 1970 I, explicit language, contains section 18 of article and in view of its debates, it was inescapable and the we find the conclusion that guaranties equal supplement expand intended to Rights requires to hold Bill of us protection provision which, classification’ 'suspect on sex is classification based ” (Ellis, valid, scrutiny.’ judicial must withstand 'strict to be held Ill. 2d 311 N.E.2d at then, Constitution, gender- emphasizing, that under our State It bears they higher scrutiny than are accorded a level of based classifications United Con- under fourteenth amendment of the States receive stitution. jury impugns gender also selection

We find that discrimination for reason Batson integrity judicial process, the the that the of jury right tried before a only not the defendant’s to be implicates discrimination, eligible also that ve chosen free of sex but the gender, that as their and nirepersons jurors, to serve whatever have rights the equally in both is vital to the societal interest of these justice system. is the proper functioning of our criminal Nowhere questions raises about concern that discrimination in the courtroom forcefully integrity system justice brought out more the of our of 111 S. in Powers U.S. 113 L. Ed. 2d than v. Ohio discriminatory use prosecutor’s where Ct. the Court held that the challenges only of the defendant and harms (Powers, 499 jurors, community large at as well. excluded but 402, 113 Kennedy at Ct. U.S. at L. Ed. 2d 111 S. at Justice explained: opportunity ordinary participate

"The to in the for citizens justice long recognized administration of has been as one of the principal justifications retaining jury system. [Citations.] system duty postulates a of participation

'The conscious machinery justice greatest in the ... One of its benefits is of jurors security gives people they, it actual possible, being judicial system country part or of the of the arbitrary can use or abuse.’ prevent [Citation.] Jury law, preserves as it service the democratic element guards rights acceptance parties of the and insures continued ordinary by people. [Citation.] of the all of the It 'affords laws participate in opportunity process citizens a valuable government, experience fostering, hopes, a for the respect one Indeed, voting, for most exception [Citation.] law.’ with the signifi- jury duty citizens their privilege the honor is most Powers, opportunity process.” participate cant in the democratic 422-23, U.S. at 111 S. a. 1368-69. at L. Ed. 2d at Batson, Ed. 106 S. at Accord 476 U.S. 90 L. Ct. see Georgia also McCollum ("[I]f 112 S. Ct. jurors court allows to be excluded bias,

because of group it a willing participant in a scheme that could undermine very justice foundation citizens’ —our it”). confidence in

Based on foregoing analysis, we conclude that applies gender discrimination in moreover, the selection of a jury; we rec- ognize gender because, defendant’s Batson claim proved, here if it is an error of such extent under the Illinois and the United States Constitutions it not cognizable causes a defendant injury, but it jurors, also harms the gender excluded comprises whose eligible least half persons State, of all in our depriving them of a significant opportunity participate life, in public casts doubt on the integrity judicial of the process, places the fairness of the crimi- indeed, nal proceeding, justice itself, system criminal in doubt.

C question The final pertinent to defendant’s claim under Batson is whether a remand for a hearing new is neces- sary. The facts here illustrate although four women served petit jury, six of venirepersons the seven excluded the State Furthermore, were out, women. pointed State itself while refut- ing the claim, defendant’s racial discrimination that five of the six excluded However, African-Americans were women. there also heterogeneous existed another characteristic of the stricken venire- persons: light each was record, unmarried. of this evidence in the we find remandment necessary give in order to defendant op- the portunity case, to establish a prima can, gender if he of facie discrimination in the peremptory State’s use of its challenges, and if made, such case is given the State be opportunity the to advance gender-neutral reasons, has, any excusing if it venirepersons the Coleman, (re- in question. See 155 Ill. 2d at 617 N.E.2d at 1206 fusing to decide Batson claim on record before it and instead hearing remanded for Batson purpose because of applica- retroactive provide tion of Batson a defendant opportunity with an to make a record prima and establish a case of discrimination fac- under facie implicated tors in a analysis). foregoing reasons,

For all of the we affirm the trial court’s deter- mination that defendant present failed to a prima case of racial facie However, discrimination under Batson. we remand the cause to the trial hearing court to conduct a Batson in order to determine whether improperly State peremptory challenges exercised its to exclude women petit jury. from the with instructions. part; remanded

Affirmed McCORMICK,J., concurs. dissenting and DiVITO, concurring part JUSTICE

PRESIDING part: court’s determination the circuit majority that agree with the I of racial case a prima establish failed to that defendant challenges was use of its in the State’s discrimination agree, I do not weight the evidence. of against manifest not however, error plain decision to invoke majority’s with the hearing for a and to remand rule in this exception to the waiver I proper case error, though in even whether there was to determine Therefore, I gender-based discrimination.10 would extend Batson majority’s opinion. of the portion from that respectfully dissent must I and "plain” always required that both Illinois courts have (E.g., be satisfied. application error plain limitations on the "error” ("Before plain at 231 73 Ill. 2d at Precup, general circumventing the considered as means error can be that an the record rule, plainly apparent from it must be waiver committed”).) majority rights affecting was error substantial and, course, here it finding that "error” occurred make a does not Thus, despite has not found. "plain” an error it proclaim cannot error, having plain found no analysis, majority, error” "plain for its determination to the circuit court remands the matter was and, that error presumably, whether occurred whether error exception error justified by plain cannot be plain. This result doctrine. waiver Indeed, represents unprecedented majority’s decision My research has not exception. plain error expansion undue rule, as the error Illinois case that invokes disclosed one and that here, has occurred declare that error majority does mandated, remand for but to for a new trial is reversal or remand occurred. determining whether error very purpose of plain, I make believe my in Mitchell should As concurrence jurors the State violates both in the selection supreme court guarantees equal protection. Our the Federal constitutional appellate judgment of the recently part of the "that vacated of a mo upon retrial the event procedure to be followed prescribing the [potential] gender-based hearing premised upon exclusion tion for a Batson 356-57), court did not (Mitchell, quoted, but the which it jurors” 155 Ill. 2d at reasoning and conclusions. with the substance of our express dissatisfaction In United States v. Olano

113 S. noting Ct. while that a any constitutional or other may by be forfeited timely the failure to right, assert the the United Supreme States provides significant Court guidance appellate for review of upon plain claims based error. The Court’s discussion is fully applicable to plain Illinois analysis, error interprets for it applies Rule 52 of the Procedure, Federal Rules of Criminal which is plain identical to the provisions error apply through to this case 615(a) (134 615(a)). Illinois Supreme Court Olano, Rule Ill. 2d R. In emphasizes the Court reviewing that a authority court’s by created plain principles error is circumscribed three limitations: "There must be an 'plain’ 'error’ is and that substantial 'affectfs] ” rights.’ (Olano, 507 U.S. at 123 L. Ed. 2d at 113 S. Ct. at pointing After "plain” out that synonymous is with "clear” or "obvious,” states, minimum, Court reviewing "[a]t [a court] cannot correct an pursuant plain error to [the error rule] unless the Olano, error is clear under current law.” 507 U.S. at Ed. L. 2d at 113 S. Ct. at 1777. majority opinion here, through interpretation, constitutional

announces a prohibiting gender rule discrimination in the selection juries in Illinois. It is obvious that what is first announced in this opinion cannot be said to have Thus, been the "current law.” what the United States Court has characterized as a minimum requirement plain analysis for lacking. error is

Moreover, majority’s plain analysis error fundamentally ignores flawed because it both the "plain” "error” and the limita- powers, focusing tions on its review instead on the "substantial rights” justifies limitation. Thus it application error reasoning that our specifically rejected courts have never it in Batson by stressing situations important compromised by values gender so, doing discrimination majority selection. 615(a) ignores the relevant admonition of our court: "Rule does operate general in the nature of a savings preserving clause all affecting rights review errors substantial they whether or not brought been have to the attention of the trial Precup, court.” in People reiterated v. Herrett 10-11. Had there been a sufficient basis to a prima find case of facie record, certainly remand would be error; proper. In that the remand would not be to find this court error, already prima would have found a case of and the remand purpose allowing prosecution would be for the to articulate gender-neutral challenges reasons for its of women. however, flawed. I majority’s logic is finding, such Without to in order discover whether with a decision to remand cannot concur occurred, plain error majority does so under when error has to the waiver doctrine. exception

II forfeited)11 (or his deciding waived correctly that defendant After claim, justifies gender majority right this discrimination to raise asserting "unique cir- exception by that its version of the error disagree. compel respectfully I cumstances” its conclusions. the trial at issue was held "unique circumstances” are that

The 1985, decided in 1986 and that year "[no] one before Batson was gender- down that even hinted that decision was handed pro- implicated in the discrimination concerns were selection (261 468.) goes suggest App. majority cess.” at The on to Ill. any to the use of objected this or other defendant State’s "[h]ad on account of peremptory challenges to exclude venire members decided, gender their before were such motion [Batson Powers] frivolous, sadly as no control- would have been considered to be (261 ling authority App. time it.” Ill. at support existed at that 468.) surely majority have been "[i]t The then concludes that would object an judicial waste resources for defendant obvious (261 his trial petit jury exclusion of women from the in 1985.” however, majority, silent defendant’s The about point having opportunity raise this at his 1990 Bat- overlooked the certainly longer hearing, by son time the was no novel. which issue (United (9th 1990), 913 1423 States De Gross Cir. F.2d Ryan, concurring specially Court’s Justice with Illinois cert, decision in v. Free denied L. Ed. 2d S. Ct. distinuishes between 488 U.S. majority in that the term "waiver” and the term used intelligent relinquishment "procedural an of a known default.” "Waiver is hand, default, right privilege. on the other re o[r] [Citation.] Procedural comply procedural requirements lates certain to a failure counsel to with [Free, appeal.” in the to raise error on which results forfeiture long (Ryan, J., concurring).) specially Our courts have used Ill. 2d at 379 might more perhaps been ac term "waiver” when "forfeiture” have dissent, reason, majority, I use the term in this like the curate. For synonymous as with "forfeiture.” "waiver” distinguishes Supreme Court also between The United States in Olano (the relinquishment aof known "intentional or abandonment "waiver” (the right”). timely

right”) of a and "forfeiture” "failure to make the assertion Olano, Ed. 2d at 113 S. Ct. 1777. 507 U.S. 123 L. (extending Batson to a defendant’s in selecting (4th the jury trial); at his 1987 United States v 1988), Hamilton Cir. 850 F.2d (declining to extend government Batson when gave as its race-neutral having reason for struck jurors female aat cert, pre-Batson men), trial it wanted denied 107 L. Ed. 2d 110 S. Ct. United States v. Broussard (5th 1993), (same).) Cir. 987 F.2d 215 At least one State court had (R.I. question considered the early as 1982. State v. Ucero 450 A.2d 809.

I majority believe the holding errs in newly that a announced rule of may constitutional dimension applied be pending to a case review, direct even if the defendant did not raise the issue at trial. majority cites no cases in permitted which a court has a defen- dant to invoke such a newly announced rule having without voiced objection during proceeding from which appeal was taken. Not even in Kentucky (1987), 93 L. Ed. Griffith 107 S. Ct. in the which United Supreme States Court determined that Batson should apply retroactively pending to cases appeal on direct at the time announced, Batson was did the Court state, imply, or even ruling that its apply would when a defendant had not raised a discrimination claim at trial.

Here, during neither his trial nor in his post-trial motion did de- challenge fendant the State’s use peremptory challenges of its to exclude petit jury. women from the when, He uttered not a murmur hearing at the in the assistant Attorney, State’s who trial, had participated effectively the objection invited such an with the candid observation that the trial "for whatever reason, in this case advantageous found it or desireable to have jury.” males on this "unique circumstances,” Under these our review plain under the error exception to the waiver doctrine is unwar- ranted.

III Although agree I that in a proper may case this court invoke the question error rule sua I sponte, propriety the as well as the entertaining wisdom of defendant’s claim when the determination from appealing original which he is is not the voir dire but the finding circuit court’s present that he failed to a prima case that the State used its peremptory challenges improperly to exclude jury. majority African-Americans from the apparently The believes any that issue of import arising constitutional at the trial is fair game scrutiny for our careful at this time. support, It cites no however, proposition reviewing for the a that court’s reach extends determined on the from those the circuit court questions different remand, get bite of the thereby permitting a defendant to a "second justify after This case does not such apple” on review remand.12 ruling.

IV concerning of the ma- portion that Some additional observations holding disagree I in order. jority’s with which are holding in Hux v. supreme reliance on our court’s majority’s case, puzzling. is In that Raben appellate that rejected party’s contention the the court doing, In so argument not to it. upon presented court had relied an resolving waiver in supreme court had no occasion overlook ma- language quoted the central issue in the case. The waiver reviewing holding jority merely justify its was used 341(e)(7),a rule provisions Court Rule may overlook brief, ability reply a far addressing points one’s to raise waived Moreover, although type from waiver in this case. cry involved views, ostensibly is quoted language from Hux consistent with following cautionary language majority fails to take note of the in that case: reviewing ability are court’s to override [to

"There limitations not, and appellate waiver]. court should '[A]n considerations not, questions, proof if will consider different theories or new they might been refute or overcome them had have offered to exercising power In presented [Citation.] been the trial.’ litigants deprived are not care should be taken Hux, argument.” opportunity present 38 Ill. 2d at 225. disregarding the waiver that it concedes occurred this " majority waiver rule one administrative '[t]he stresses ” (261 jurisdiction.’ rather than convenience Smith, major- quoting Ill. 2d at What out, however, quoted ity neglects point principle is the is the to that i.e., appeal, separate appeal procedural posture The from of this remand, hearing opinion after first in this is unusual. Nine months our after remanding explained for a Batson court that when 615(b) (134 jurisdiction Ill. hearing, appellate as Rule court should retain 615(b)) hearing. allows, issuing opinion (People v. after the Garrett 2d R. if we had retained 2d Even Ill. jurisdiction hearing, remanding for I believe that while the Batson See, arising hearing newly e.g., People v. from be raised. issues that could (supplemental opinion after App. Jones 3d remand). underpinning error; for our review justify of it does not a search or, any for majority here, error as the regrettably does remand to Indeed, determine error whether occurred. self-imposed some power advisable; limitation our review is prudence dictates caution overriding in well-established principles, except genuine waiver plain-error situations. We premise upon must be mindful of the which alleged waiver doctrine based: the need call error to the attention of adversary one’s and the trial court so that remedial might measures be taken at the circuit court level. should We also recognize that the effectively encourages competency waiver doctrine bar, willingness ignore of of the members trial while our waiver unprofessionalism fosters and rewards ineptness. significantly, Most willingness requires such appellate in criminal counsel cases to issues, pursue waived lest claims ineffective assistance of counsel against them, lodged any be for reviewing might time a do majority what the does here. responding what my "hypertech- it refers to as desire for legal package” my

nical implementation waiver,” "constrictive (261 majority quotes Spanish poet App. Antonio Machado. Ill. n.7.) majority’s at 472 of quotation revelational choice underlies its prece- statement that the absence of Hux as "[e]ven authority, dential would be compelled we to decide this case no n.7) (261 differently reject than I we do here.” "you way you go” notion proper principle make the can be a were, If appellate review. it it firmly would devour all of the principles properly temper authority. established review our Although I majority’s regarding share the unaccept- fervor ability gender selection, in jury discrimination I do not share its belief possibility that the mere is so offensive that, record, regardless adequacy compelled of the we are forcefully hearing state that fact here as to and remand for its exis- tence, though precedent justifies no even such action. This is not a concerning gender case that demands articulation fervor discrimi- nation; presents we should await a in a proper case that issue This, summary, requires unique form. is not case that majority treatment affords it.

Case Details

Case Name: People v. Lann

Court Name: Appellate Court of Illinois

Date Published: Apr 19, 1994

Citation: 633 N.E.2d 938

Docket Number: 1-90-2966

Court Abbreviation: Ill. App. Ct.