People v. Rivera

ILLINOIS, THE THE Plaintiff-Appellee, PEOPLE STATE OF OF RIVERA, Defendant-Appellant. MICHAEL (6th Division) District First No. 1 — 00—3871 May 7, Opinion filed 2004. J.,

GALLAGHER, concurring. specially P.J., FROSSARD, dissenting.

O’MARA Office, Leven, Chicago, ap- for Appellate of State Defender’s of James K. pellant. (Renee Goldfarb, Mary Devine, Attorney, Chicago L. of Richard A. State’s counsel), Attorneys, for

Boland, Gaffney-Barnum, Jill Assistant State’s and People. of the court: opinion JUSTICE TULLY delivered the Rivera, guilty found trial, defendant, Michael was Following jury a 1998)) 1(a)(1) (West (720 and ILCS degree of first murder 5/9 — timely appeals, Defendant years’ sentenced to 85 incarceration. (1) raised a reverse erred it sua contending the trial court when (see 69, 106 S. 79, 90 L. Ed. 2d Kentucky, 476 U.S. Batson (1986)) challenge during challenge peremptory to his use of a Ct. 1712 (2) an the rule selection, his extended-term sentence violated 147 L. Ed. Jersey, v. New 530 U.S. Apprendi nounced (3) his (2000), sentence violates and his extended-term S. Ct. 2348 af constitution. We guaranteed by trial as the Illinois firm.

BACKGROUND challenge Since has not sufficiency defendant raised to the murder, may his supporting degree evidence conviction first with present tragic simplicity. the case facts clear Defendant was a member of “Insane street held gang Deuces” the rank early morning January 10, “chief enforcer.” hours riding defendant was a van with several who gang individuals were members. saw the walking housing complex Defendant victim near known Lathrop mistakenly as the Defendant believed Homes. “Stone,” was a gang. victim member rival Defendant left accompanied gang van two fellow members. Defendant fired several from a shots revolver. One bullet the back his struck victim head and him. After shooting, killed defendant and the two other gang slogans including yelling gang members returned van Later, members, killer.” displaying gang “Stone the revolver to other killer.” police that he “Stone bragged was a recovered gang the revolver from another member. attempt

Defendant’s first contention arises out of his use during jury challenged juror selection. The Gomez, supervisor County Deloris a business office at Hospital. Cook During questioning by counsel, acknowledged voir dire defense Gomez County Hospital that Cook is known for the of gunshot treatment victims. Gomez that she did not work explained hospital at itself but clinic outpatient hospital. associated with the Gomez indicated that she would not be off one or another” way against “set defendant. dire,

Following voir defense counsel announced his to intention Gomez, a peremptory challenge against use and the trial court called for a conference in trial court to chambers. The asked defense counsel excusing articulate a basis for Gomez. The trial said it act- court was ing it felt what it compelled perceived because react to juror’s rights. a violation of Defense stated that was the counsel he excusing hospital probably in a Gomez because she worked that treats world, gunshot than in the any probably more victims other she daily parties the violent The agreed sees victims of crime on basis. had that Gomez was the second African-American woman defense attempted and that defense had previously accepted exclude other African-American woman. that, County

The although Hospital trial court commented Cook might having cases, many emergency have the Gomez reputation hospital. worked a business office a clinical division of not given by defense counsel did held that reasons satisfy it that Gomez be seated over defense counsel’s and ruled request defense counsel’s granted trial court objection. questioning dire of Gomez. for additional voir counsel, Gomez admitted by defense During questioning further “great number” hospital that treated that she was aware again indicated crimes. Gomez who were the victims violent patients hospital’s from the separate in a clinical division that she worked separate building. in a Gomez and that the clinic was emergency room the clinic were the being treated at patients that some of the admitted experience her indicated that again crime. Gomez victims of violent did not of violent crimes that treats victims working hospital the trial the instructions of ability her to be fair and follow affect that the basis for his court. counsel indicated Defense same, an additional factor but added that as challenge remained women challenging predominantly he Gomez because the was was men on the case. Defense trying get impact and he of other was that he had in the clinic and that it counsel further indicated been disturbing place to wall” victims. The trial court was a with “wall juror again held that Gomez would be seated as over defense objection. counsel’s remaining validity

Defendant’s of his contentions During sentencing hearing, extended-term sentence. parties impact Apprendi

court asked the to discuss the decision request imposition on the State’s for the of an extended-term sentence. argued Apprendi apply The State that did not to Illinois’ murder degree possible statute because the maximum sentence first greater murder death and an could be was extended-term sentence not argued than a sentence of death. The State further that defendant subject to an extended-term sentence because the crime was com- was and, mitted in an brutal and heinous manner alterna- exceptionally tively, leadership position gang. because defendant held a degree responded Defendant the maximum sentence for first years’ extending murder incarceration and that factor was that, jury. argued term must be submitted to the Defendant further determination, if even the trial court was allowed to make the support finding evidence did not that he acted a brutal or heinous manner or that he held in the The trial leadership position gang. Apprendi apply penalty court held that did not because the maximum for first degree murder was death. The trial court found that defendant subject the chief extended-term sentence because he was gang years’ enforcer of the and sentenced defendant to a term of 85 Defendant a motion subsequently incarceration. filed to reconsider his incorporating arguments. sentence The trial court denied Apprendi his defendant’s motion.

ANALYSIS Defendant first contends the trial court erred when it sponte raised a reverse-Batson challenge attempt his to use a against Gomez. The starting point for any discussion of the discriminatory use of peremptory challenges is the Batson, Batson case itself. the Supreme Court held that the use of peremptory challenges by the State in racially discriminatory man- ner violates an equal accused’s protection “because it denies him the protection that a trial by jury is intended to Batson, secure.” 86, 80, 476 U.S. at 90 L. Ed. 2d at S. Ct. at 1717.

Supreme recognized Court also the long-established principle that racial in jury discrimination selection unconstitutionally discriminates juror. Batson, against the excluded 87, 81, 476 U.S. at 90 L. Ed. 2d at 1718, citing Virginia, Strauder v. West 106 S. Ct. at 303, 100 U.S. 25 L. (1880). Moreover, Ed. 664 passage highly relevant to the case at bar, Supreme interest, identified broader stating:

“The harm from beyond selection extends that inflicted on juror the defendant and the excluded touch community. entire procedures Selection that purposefully exclude persons juries black from public undermine confidence the fair- system justice.” Batson, ness of our 87, 476 U.S. at 90 L. Ed. 2d 81, 106 S. Ct. at 1718. Supreme Court concluded that the State’s use of peremptory challenges subject is to the commands of the equal protection clause, stating:

“Although prosecutor ordinarily is entitled to permitted exercise all, peremptory challenges ‘for long reason at as as that reason concerning is related to his view the outcome’ of the case to be [citations], Equal tried prosecu- Protection Clause forbids the challenge potential jurors solely tor to on account of their race or assumption jurors on the that black group as a will be unable impartially against to consider the State’s case a black defendant.” Batson, 82-83, 476 U.S. at 90 L. Ed. 2d at 106 S. Ct. at 1719. In response potential equal violations, protection Court created the now-familiar three-step procedure used to address Batson, potentially discriminatory peremptory strikes. at 93- U.S. Har 85-89, 1721-24; 90 L. Ed. 2d at 106 S. Ct. at see also (2002) ris,- (outlining 206 Ill. 2d three-step procedure ap courts). First, the defendant must make a prima facie plied Illinois showing prosecutor peremptory challenges exercised on the Harris, Second, basis of race. 206 Ill. 2d at 17. after a made, explanation the State must articulate a race-neutral for excus Harris, ing Finally, venirepersons question. Ill. 2d at 17. defendant has carried his must determine whether trial court Harris, Ill. at 17. 206 proving purposeful burden of court, however, to rule on whether the expressly The Batson refused peremp to defense counsel’s use of procedure applied same should be n.12, Batson, n.12, 90 L. Ed. 2d at 82 476 U.S. at 89 tory challenges. n.12. 106 S. Ct. at 1719 it left unanswered question

The Court addressed the Supreme 42, 33, 112 McCollum, 120 L. Ed. 2d Georgia in Batson in v. 505 U.S. (1992). McCollum, presented In Court was Supreme S. Ct. 2348 issue, i.e., whether the limitation on with a so-called “reverse-Batson” applies equally in Batson peremptory challenges imposed on the State Court observed that its resolu Supreme to criminal defendants. following ques of the on the four depended tion issue answers tions:

“First, a criminal of peremptory whether defendant’s exercise chal- lenges racially discriminatory manner inflicts the harms ad- Second, by peremptory dressed Batson. whether the exercise of challenges by Third, a criminal defendant constitutes state action. prosecutors standing whether have to raise this constitutional chal- fourth, lenge. rights And whether the constitutional of a criminal preclude defendant nonetheless the extension of our precedents to McCollum, 48, 44, this case.” 505 at 120 Ed. 2d at 112 U.S. L. S. Ct. at 2353.

The Supreme questions Court answered the first three in the affirma- tive and the in the negative last and concluded that the Constitution prohibits engaging a criminal defendant from in purposeful discrimina- grounds tion on the peremptory challenges. of race the exercise of McCollum, 59, 51, 505 U.S. 120 L. Ed. 2d at 112 S. atCt. 2359.

Defendant contends that apply McCollum does not to the case State, before us because it was the trial not the that raised the to his use of a peremptory Defendant focuses his question on the third identified argues although McCollum. Defendant may State have had object standing peremptory challenge, to his use of a the trial court standing power sponte. lacked and therefore lacked the to act sua argues may perceives Defendant that a trial court not address what it challenges as a use of unless the issue is raised parties. Although the State cites several cases which it sponte,1 was noted the trial court raised a Batson issue sua (1993); App. 1See 263 Ill. 3d 1077 Beard, Williams, People v. v. (1993), (1995); App. Ill. 3d 704 Ill. 2d 51 grounds, rev’d on other (1991). 3d 733 Harvey, preliminary question none of these cases addressed the whether right trial court had the to raise the issue. McCollum,

In the Supreme analysis Court followed the of third- party standing Ohio, that it first applied selection Powers v. 400, 411, 111 Powers, 499 U.S. 113 L. Ed. 2d S. Ct. 1364 issue before the Court was whether a white defendant had the assert a Batson violation based on the exclusion of African-Americans jury. from the In both the Supreme three-part cases Court used a test third-party standing. The Supreme litigant Court held that a can party, litigant raise claim on behalf of a third if the can demonstrate (1) (2) that: he injury; has suffered a concrete he has a close relation (3) party; to the third there exists some hindrance to the third party’s ability McCollum, 55, protect its own interests. 505 U.S. at 49, Powers, 120 L. Ed. 2d at citing S. Ct. at 499 U.S. at L. Ed. 2d at S. Ct. at 1370-71. The McCollum Court ultimately concluded that a on prosecutor acting behalf of the State has standing jurors. to raise a Batson claim on behalf of the excluded McCollum, 56, 49-50, 505 at 120 U.S. L. Ed. 2d at 112 S. Ct. at 2357. In us, the case before three-part analysis we must reexamine the used in McCollum to determine whether it remains valid when the party acting on juror behalf of the excluded is the trial court rather than the prosecutor. prong analysis litigant first of the considers whether the has injury. Powers,

suffered a concrete In Supreme the Court held that a injury defendant an discriminatory jury suffers as the result of selec- practices practice tion integrity because the casts doubt on the of the judicial Powers, 411, process. 425, at 111 U.S. L. Ed. 2d at S. Ct. at 1371. The wrong, apparent Court observed: “The overt often the jury panel, obligation parties, entire casts doubt over the of the jury, the and indeed the court to throughout adhere the law the trial added.) (Emphasis Powers, 412, of the cause.” atU.S. 113 L. Ed. 426, 111 2d at S. Ct. at 1371. The McCollum held Court that the State represented by prosecutor injury as the suffers a similar when the integrity judicial fairness and of the process is undermined. McCol- lum, 56, 49, 505 U.S. at 120 L. Ed. 2d at 112 S. Ct. at 2357. We believe if parties injury the suffer as a result actions that undermine judicial process, judge, the fairness of the presides who over trial, fact, equal greater injury. the must suffer an or In when consider- ing peremptory challenges whether a defendant’s use of constitutes action, “Regardless state the McCollum Court observed: of who removal, precipitated jurors’ perception reality the the and the race, jurors on criminal trial will be that the court has excused based added.) (Emphasis an outcome that be to the State.” will attributed If 47, 112 at 2356. 53, 2d at S. Ct. McCollum, at 120 L. Ed. 505 U.S. injured are State, prosecutor, the represented and the as might be at- discriminatory practices selection racially jury because implication the clear State, an act of the trial tributed to the as greater court, itself, injury great as or that the trial has suffered is by the parties. than that suffered whether the standing of the test considers prong

The second McCollum, the In party. has a close relation to the third litigant State, acting through prosecutor, Supreme Court held that the proper” party people logical all the and “the representative McCollum, 56, 505 U.S. at rights jurors. of excluded to assert has 49, 112 at 2357. believe that the trial court L. Ed. 2d at S. Ct. We anyone that comes before obligation respect rights a similar witness, Further, juror. we believe litigant, it whether than relationship jury between the trial court and the is even closer parties jury. and the The trial court relationship between duty bound to act only participants are the impartially, and the relies on the trial court for its instructions Moreover, above, regarding the law. as we noted the use as an challenges discriminatory likely interpreted fashion is to be regardless act of the trial court initiates the Accord- who ingly, sufficiently conclude that the trial court also has a close on their relationship jurors to raise a claim of discrimination behalf. prong third-party standing analysis

The final considers Powers, In party’s ability protect third its own interests. juror Supreme by prospective Court described the barriers to a suit Powers, 111 S. Ct. daunting. 499 U.S. at 113 L. Ed. 2d at held that the barriers identi- 1373. McCollum action fied Powers were no less formidable when McCollum, is initiated a criminal defendant. 505 U.S. at 120 L. 49-50, argues that the barriers Ed. 2d at S. Ct. at 2357. Defendant applicable are not the case identified Powers McCollum State, through prosecutor, before because the defendant or the us argu- find challenge juror’s can raise a Batson on the behalf. We this First, jurors’ rights are unpersuasive. any particular ment make a Surely, litigant no guarded by only parties. one of these challenge on the peremptory challenge object and then to its own discriminatory. Second, we are asked to consider basis that it was State, juror rights. Although his or her own ability to assert a Batson violation on a acting through prosecutor, may assert juror’s behalf, act, juror ability require, if no the State fails to has Accordingly, we determine request, prosecutor or even that the do so. that the barriers identified in Powers and McCollum are equally formidable in the presented by Therefore, situation bar. we conclude that the trial standing court has to act on juror behalf of a subject practices. selection

Defendant argues allowing a trial court to raise a Batson challenge sponte sua improper places is because it the trial court in position advocate. See v. Bedenkop, 252 Ill. 3d (1993). disagree. A We trial court impartial should not abandon its role position However, and assume the of prosecutor. we do not find that the trial court does so when it raises revers e-Batson so, When the trial court acting does it is on behalf of the excluded juror protecting and is integrity judicial system itself. As long as the trial court responds equally to discriminatory jury selec practices tion whether State, committed the defendant or the it has not violated obligation its to act fairly Moreover, and impartially. believe danger there is less of the trial court abandoning its impartial role because in Illinois trial courts have traditionally taken a greater far during jury role selection than during phases the other trial. See (requiring R. 234 the trial court to conduct voir jurors dire questioning of and acquaint prospective jurors with the general responsibilities jurors). duties and

Although argues defendant opinion likely that our will be misconstrued, we find path upon that the today which we embark slippery not as as defendant warns. for the benefit of those reading opinion future, this in the compelled that, we feel to state although a trial court has a right objections to raise Batson sponte, sua there corresponding so, is no duty to do and a defendant who fails to timely object prosecutor’s to a challenges cannot avoid waiver by argu ing that the trial duty question court had a prosecutor’s mo precisely tives. This is adopted by formulation our supreme court it held when that a trial court has the juror discretion to remove a cause duty but that it has no to do so. See v. Met calfe, 202 Ill. 2d We conclude that the trial court could properly raise the challenge reverse-Bafeora to defendant’s use of against juror Gomez. contention,

As to the substance of defendant’s revers e-Batson argues that the trial court erred when it required defense counsel to articulate a reason for his peremptory challenge because a prima case of discrimination had not been established. The trial facie raising court stated that it was the Batson issue because Gomez was the second African-American woman peremptorily challenged by argues defendant. Defendant race-gender inter alia that combined discrimination cannot form the basis for a case of (1993). 26, 3d App. 257 Ill. Washington, v. People See discrimination. race-gender combined consider whether However, need not we under Bat- case prima a be used to establish discrimination can facie rules the trial court clearly held that once court has supreme son. Our discrimination, a question whether question on the ultimate Hudson, 157 moot. v. had been established is prima facie (1993). Ill. 2d 427-28 three-step collapsing the trial court The dissent accuses for be remanded argues that this matter should procedure Batson Although disagree. We a case existed. hearing prima a on whether facie that the issue reaching the determination rely on Hudson we moot, the dissent established was prima case was whether facie York, 500 v. New distinguish Hernandez responds by attempting (1991). that 395, 111 We are aware 352, 114 Ed. 2d S. Ct. 1859 U.S. L. holding on the fact that Court based its Hernandez the prompting from the responded chaUenge the State to a Batson without requested trial court that in the case before us the while peremptory challenge. for present a race-neutral basis his case, However, analysis to the Hernandez the dissent by limiting its that has considered ignores more than a decade of Illinois case law rejected analysis applies. the dissent now Hudson, argument the State’s supreme our court considered not moot Batson violation was prima existence facie responded only response because it had with a race-neutral reason Hudson, Ill. 2d at 427. The prompting. to the trial court’s See only propriety rejected Hudson court and considered regarding of the trial intentional discrimina finding court’s ultimate Hudson, ap has recently tion. 157 Ill. 2d at 427-28. More this court “in a case involv plied holding, language, the Hudson decision in clear State, question of whether the ing claim the reverse-Batson moot case becomes sufficiently prima State has demonstrated facie ir of discrimination once the trial court rules on the ultimate issue his explanations volunteers respective of whether the defendant Rivera, People v. challenges prompted by or the court to do so.” (1999). dozens of cases App. Ill. 3d Our research has revealed 332 Ill. See, People Haggard, v. following analysis. e.g., the Hudson (2002). However, text of point cluttering 3d 46 no App. we see lengthy string citation opinion burdening this the reader with hand, On the other our research analysis. that would add little to our Hudson, only has decided after published discovered whether interpreted proposes Hernandez as the dissent and considered after the trial court showing of discrimination was made See purposeful ruled on the ultimate issue of Washington, 916 n.1 we consider because, this case an dissent, aberration like the Washington solely looked to Hernandez and failed to address the holding of Hud Therefore, hold, son. we continue to like the great majority of Illinois courts, that any issue related to stage the first analysis was moot.

Moreover, observe, practical matter, as a that because the trial court’s determination is based observations, on its own stage the first of the inquiry necessarily Batson will collapse. If a trial court observes an apparent violation, we believe that it may proceed im- mediately to stage the second inquiry. of the dissent, Unlike the would not impose obligation on courts the engaging meaningless rhetorical exercise in they which would first articulate perceived basis for the Batson violation and then announce that they persuaded have been by their arguments. course, own Of dowe not intend to imply cannot, that a trial court in the exercise of its discretion, state the basis of findings that, its for the record or in a case, close precluded court is from requesting that the parties present arguments regarding the existence of a prima case. However, we do not believe that the trial court is under any obligation adopt to either approach. Admittedly, allowing a trial court to sua sponte raise a Batson issue creates potential for abuse. we are confident that the trial courts in this state will exercise their responsibly. discretion dissent, Unlike the we do not believe that mind- less adherence to the three-step analysis of Batson is necessary to they ensure that do so.

We turn then to the question of whether the trial court erred when it determined that defendant’s use of a peremptory challenge purposeful constituted discrimination. The trial court’s determination as to intent is a finding of fact entitled great to defer ence, and we will disturb that only determination on if review it is clearly Harris, erroneous. See 206 Ill. 2d at 17.

Defense counsel indicated that he used a peremptory challenge against Gomez because she worked at County Hospital Cook and he experience believed that her gunshot with victims prejudice would her against defendant. The trial court upon weigh was called the cred- ibility of defense explanation. counsel’s In this the victim was African-American, mother, and the victim’s an African-American woman, expected testify. was Defense counsel’s use of peremptory challenges against female jurors African-American raises the inference defense counsel was motivated the constitutionally impermis- sible belief that African-American women on the react sympathetically testimony from the victim’s African-American find a motive rationally could the trial court Accordingly, mother. women, groups African-Americans, or both against discriminate was explanation proffered validity The simultaneously. in a that she works testified because Gomez significantly weakened separated building physically hospital and office at the business admitted victims are gunshot emergency department where from the explanation was counsel’s credibility of defense hospital. striking he that was defense counsel admitted further when weakened counsel woman, though defense even because she was Gomez attempt to “bal- gender act of discrimination described this clear court’s determina- Therefore, that the trial we conclude jury. ance” the discrimination purposeful engaged counsel was tion that defense it did not err when erroneous, and the trial court manifestly was not objection. juror defendant’s seated Gomez as a over of an extended- imposition that the Defendant next contends The trial Apprendi. rule term sentence violated the announced finding sentence on its of an extended-term imposition court based the gang pursuant to sections organized a leader of an (730 5—3.2(b)(8) the Unified Code of Corrections 5—8—2 and 5— 5—3.2(b)(8) 1998)). 5—3.2(b)(8) (West 8—2, Section ILCS 5— 5— 5/5— authorizes an extended-term sentence: felony conspiracy other than

“When a defendant is convicted felony agree- under an that the was committed and the court finds persons to commit that offense and ment with 2 or more other individuals, defendant, occupied posi- respect with to the other financier, position or other organizer, supervisor, tion of finds that the management leadership, or and the court further to or in furtherance of the criminal felony committed was related gang motivated the defendant’s organized activities of an or was 5—3.2(b)(8) ILCS leadership organized gang[.]” in an 730 5/5 — (West1998). of the defendant was the “chief enforcer” The trial court found that under for an extended-term sentence gang eligible and that he was 5—3.2(b)(8). finding by this argues section Defendant that 5— jury determine facts that could court violated his to have the subject. he penalty increase the maximum to which was simple in can be summarized Apprendi The rule announced necessary to establish requires that all facts process “[D]ue statement: the defendant’s sentence statutory sentencing range within which v. a reasonable doubt.” proven jury beyond falls must be level, and in its brief on Swift, 202 Ill. 2d At the trial extended-term sentence did appeal, argued the State that defendant’s for penalty the maximum Apprendi not violate the rule because in in murder Illinois is death. after State filed brief its supreme this our court resolved the issue and held that sentencing range degree years’ for first murder in Illinois is 20 to 60 that, in order imprisonment comply Apprendi, any with factual findings beyond range which take a to a proven sentence must be beyond argu doubt. Ill. 2d at Swift, reasonable 392. At oral ment, the State its regarding sentencing abandoned for range degree arguments first murder and its on focused instead Apprendi whether the error this case constituted harmless error. Swift, range In accordance the sentencing with find that years. Swift, murder Illinois to 60 is 20 See 202 Ill. 2d at Ac 392. cordingly, the submit question failure to of whether leadership position defendant held a organized gang an within 5—3.2(b)(8) meaning of section in Ap violated rule announced 5— Therefore, prendi. Swift, See 202 Ill. 2d at 392. the question before us is whether this violation In Apprendi constituted reversible error. Thurow, (2003), Ill. 2d 352 supreme recently our court emphasized that an Apprendi per violation is not se a error reversible subject an Apprendi may and that violation be to a plain-error Thurow, harmless-error at analysis. 203 Ill. 2d 363.

Although plain-error similar, analyses harmless-error are they their significantly imposition differ the burden persua Thurow, sion. at 363. analysis applies The harmless-error objection, when defendant made a timely has and the bears State persuasion respect Thurow, the burden of with to prejudice. Ill. 2d words, “In at 363. other the State prove beyond must a reasonable doubt that the jury verdict have been the same the er absent Thurow, at plain-error analysis ror.” 203 Ill. 2d 363. The applies when a timely objection, a defendant fails to make and the bears persuasion respect prejudice. Thurow, the burden of with 203 Ill. 2d words, reviewing may at other 363. not correct an error forfeited would otherwise be unless the defendant can demon Thurow, prejudice of the strate as a result error. Ill. 2d at 363. us, Apprendi In the case before defendant raised issue against Accordingly, arguments trial level. we will review the State’s doubt standard. We believe that there can be little harmless-error 5—3.2(b)(8). State of section proved that the most elements 5— clearly also clearly gang The crime was related. The crime involved more agreement persons. between defendant and two or other defendant when he left the van gang accompanied two members that certainly agreement, agreement may the also part were and defendant obtain the gang helped have included the members who the key question or hid the after the crime. believe weapon weapon We or management leader- occupied position is whether defendant ship. was the evidence that defendant uncontested presented

The State that, conjunction in with the the We believe gang. “chief enforcer” of no rational during shooting, jury the defendant’s conduct evidence of management position not a could find that “chief enforcer” was Thurow, Although 203 Ill. 2d at 369. gang. the See leadership within detailing organizational testimony did not elicit the full State in gang, it evidence that the “soldiers” present structure of the did be “violated” if gang required were to follow orders and could The they presented to do so. State additional evidence that failed gave a title in the and orders to the soldiers that gang defendant held may relationship were with him. have evidence between We not leaders, gang presented enforcer” and other but the State “chief overwhelming position and evidence that defendants uncontested position him placed leadership chief enforcer somewhere above Therefore, gang. Apprendi in the we that soldiers conclude violation in this case harmless error. constituted finally imposition

Defendant contends that of an extended- jury term in right sentence this case violated his to a trial as guaranteed by argues the Illinois Constitution. Defendant this right and, than that constitution guaranteed is broader federal violation, subject unlike Apprendi such a violation is not in analysis. analysis harmless-error harmless-error used Thurow precedent on United Court Supreme interpreting based States right guaranteed We jury to a trial the federal constitution. have that, arguments recognize if carefully considered defendant’s we greater protection find that Illinois than the provides Constitution constitution, federal we are not bound follow the Thurow, J., (Freeman, specially at 375 concur lockstep. See Ill. 2d discussion ring). However, find of the his nothing we defendant’s tory jury in Illinois that right compels criminal defendants’ trial analysis lockstep us to break that the harmless-error conclude Moreover, Illinois impermissible Thurow is under the Constitution. defendant’s Illinois because we believe a detailed discussion of recapitulate Constitution would do little more than arguments already progeny, forth and its adequately Apprendi set lengthy dispose we have elected to of this contention discus without Therefore, sion. to a conclude that violation of guaranteed by was harmless Illinois Constitution right to regard same discussed to defendant’s reasons above trial under the constitution. federal

CONCLUSION reasons, For the foregoing judgment of the circuit court County Cook is affirmed.

Affirmed. GALLAGHER, specially concurring:

JUSTICE I concur in I judgment. regard also concur with trial raising sponte. agree court’s of the Batson issue sua While I with three-step that process dissent articulated Batson be fol- should lowed, I Although believe that here. occurred trial court did not so, expressly state it inferable that is the court believed that a case was established when defense counsel excluded a second it arguable African-American. While is that not excusal did pattern against African-Americans, constitute a of strikes since defense female, counsel also excused a male and a requires white white Batson that relevant circumstances raise an of purposeful inference trial discrimination. To the such an inference raised. was disagrees Whether one agrees point. is not the point that one of step the Batson was process followed. rejected

The trial rightfully court defense counsel’s articulated that County reason Mrs. Gomez worked at Hospital Cook and thus be in a position gunshot to observe Mrs. made victims. Gomez it that in the clear she worked business office a clinic with affiliated hospital but which was located in a separate building. After ad- dire, voir to sought ditional defense counsel excuse Mrs. Gomez jury, because counsel wanted fewer women on the and the court also view, correct in rejecting my although was that reason. In was a this issue, presentation of the integrity three-step novel Batson therefore, process preserved, was I concur the judgment. FROSSARD, PRESIDING JUSTICE O’MARA dissenting: agree I with majority’s conclusion that the trial court has the power sponte to sua neces raise reverse-Bafeon. when it is prevent to sary progeny recognize discrimination. Batson and its jurors, right potential litigants, equal protection as well as have an selection free procedures from discrimination. It is within manage discretion of the trial courts to and control the administration justice, including intervening protect equal protection this jurors, sponte a Batson potential litigants, by raising as well as sua (1993) Beard, 1077, People App. See v. 263 Ill. 3d 1081 (where trial question sponte, court raised Batson sua Williams, Ill. obligated issue); People not raised the v. 252 have

183 (trial (1993) call Batson may sponte sua 704, court 3d 712-13 App. (1995) (affirming Ill. 2d 51 grounds, rev’d on 165 hearing), other (1991) 733, (noting Ill. 743 court); Harvey, App. v. 3d People Whaley, v. sponte)-, People the Batson the trial court raised issue (1989) concurring), quot (Rizzi, J., specially 459, 3d App. 184 Ill. (1988) (trial Andrews, Ill. App. v. 3d ing People ” “ idly accomplice to discrimination by’ sit and become ‘cannot selection). minority from person The exclusion even Andrews, 155 race is unconstitutional. v. jury venire based on (1993). Moreover, complete require does not Ill. 2d Johnson, group prove exclusion racial When, however, the trial court sua the instant three- challenge, a revers e-Batson the court should adhere to the raises in Batson. was not followed here. step process process articulated That Batson, three-step set United States forth peremptory for analysis establishing whether the State exercised its 96, challenges racially Batson, manner. 476 U.S. at 87-88, analysis 90 L. Ed. 2d at 106 S. Ct. That three-step at 1723. a by equally applicable sponte to a reverse-Bafeora raised sua in First, trial prima purposeful court. a case of discrimination facie jury demonstrated; second, prima if a case is selection must be facie demonstrated, juror the shifts to the party challenging burden third, challenging articulate a for and juror; race-neutral reason purposeful the trial court considers those and decides whether reasons Batson, 96-98, discrimination has been demonstrated. See 476 U.S. at 87-89, Contrary three-step 2d at 90 L. Ed. 106 S. Ct. 1723-24. to the Batson, analysis provided the United in by States case, three-step in ought the instant what to be a collapsed procedure process. into an of the undifferentiated review selection (2000). Crockett, 389, People App. See v. 314 Ill. 3d Regarding is the of the prima stage which first facie three-step procedure Batson, supreme recognized under has our in determining several relevant circumstances to examined whether be established, discriminatory jury case selection has prima been facie (1) including following: identity racial between defendant and (2) a African- persons; pattern against excused venire of strikes (3) challenges persons; disproportionate American use (4) against persons; African-American the level African-Americans (5) represented compared jury; ques- to the the venire counsel’s during exercising peremptory tions and statements voir dire and while (6) challenges; persons whether excluded African-American venire heterogeneous group sharing only were a race as their common (7) characteristic; defendant, victim, and the race of the and wit (1996). Williams, 48, v. In People nesses. 173 Ill. 2d the instant case, the record fails to reflect that the trial court examined these relevant circumstances.

The did any trial court not articulate evidence that defense counsel purposeful discrimination, had engaged other than the fact that Mrs. Gomez have the second African-American been female accepted excused the defense. Defense counsel had one African- female, Starks, woman, American Elma had excused another Rosalee had Huizanga, male, Hickey. excused white Thomas The critical element of a has be prima recognized case been to whether the facie fact of and any removal other relevant circumstances raise an infer purposeful Williams, ence of See v. 2d 147 Ill. 173, 220 court completely The trial step eliminated one and demonstrating failed to make record prima case of purposeful facie Davis, discrimination selection. 901, (2004), judge improperly the same trial collapsed step one analysis. step three the Batson York, 352, State relies on Hernandez v. New 500 U.S. 114 L. (1991), support Ed. 2d 111 S. Ct. question of a prime whether case under Batson was facie moot established is because the counsel in defense the instant case explanation

submitted an for his of peremptory challenges. exercise argument, Based on State unnecessary contends that it is prima us determine whether existence of a case facie discrimination has been distinguishable. demonstrated. Hernandez is Hernandez, in instant case, Unlike trial judge raised Hernandez, a revers As e-Batson noted in analysis is moot rendered when a neutral reason is offered Hernandez, inquiry “without from the trial prompting court.” 500 U.S. at L. Ed. 2d at 111 S. Ct. at In the 1866. instant case, explanations were in response offered defense counsel inquiry. trial court’s direct After the trial court sua sponte raised the questioned revers trial challenge, e-Batson the court defense counsel’s by “Counsel, you kindly Mrs. asking, decision excuse Gomez why you excusing articulate a basis of are Mrs. Gomez?” Defense response counsel’s offered in direct to the trial explanations were court’s question. Hudson, v. 157 Ill. People

The Illinois 2d (1993), in Hernandez held that the ruling 427-28 extended the and is moot the trial court rules on the prima issue rendered once facie the legitimacy explanations regardless of counsel’s of whether State by proffer or had been the trial court to its reasons. prompted had not race- that where proposition for the majority on Hudson The relies if even challenge, peremptory given are for neutral reasons moot. court, is rendered issue by prima prompted the trial facie only majority The asserts Hudson, 157 2d at 427-28. Ill. trial where the has held that case after Hudson published decided reasons, prima of a of issue giving race-neutral prompts court Ill. Washington, 272 showing rendered moot. See v. is not facie However, not determinative 3d 916 n.l Hudson App. raised a case, judge sponte a trial sua factual of this where context any prima of a bypassed determination reverse-Batson violation defense by explanations race-neutral from requesting case facie challenge. for his peremptory counsel have ad following nor the cases Hudson Neither Hudson resulting prompting inquiry dressed the issue of whether trial court challenges the use of giving explanations in counsel moot in the context prima renders the existence of case facie The by judge. challenge sponte e-Batson made sua trial revers (1999), as Rivera, relies majority on the Hudson rul example applying an a recent revers e-Batson case aprima explana that the case moot once ing existence becomes facie given explana regardless tions are whether defendant volunteers by tions or is trial did not prompted inquiry. Rivera chal prima address the issue in the context of a revers e-Batson facie Rivera, State, lenge by judge. made In not the sponte sua court, challenge. trial raised the reverse-Batson sponte raising challenge trial sua by The the revers e-Batson requesting explanations peremp- and then from counsel for his defense tory challenge, bypassed deprived issue and defense prima facie input regarding counsel of opportunity prima to offer facie process That precluded challenging case. defense counsel from existence of a racial prima purposeful case of facie demonstrating the context the instant a factual record prima particular existence of a of discrimination is of case facie importance reviewing to enable the whether the court to determine sponte court’s decision to sua raise and declare a revers e-Batson viola- rare, justified. tion Revers more e-Batson violations are even alleged unusual is the fact that the was raised reverse-Bafeoraviolation My party, judge, sponte. not but research has no case reverse- sponte revealed Illinois where a trial court raised sua judge’s Batson The trial failure to make a record of the regarding this uncommon sua revers e-Batson ruling impossible. proper makes review of majority fails to address defendant’s that Batson is race-gender not to applicable combined discrimination. the trial When sua judge sponte raised challenge, the revers e-Batson the judge expressed concern about fact the that Mrs. Gomez was “the second African-American sought female that the defense has to exclude.” Relying on prima Hudson’s conclusion that a establishing case facie becomes moot once the trial court rules on the issue ultimate of discrimination, majority the dismisses the defendant’s Batson is not applicable race-gender to combined discrimination. However, Hudson never addressed applicable whether Batson is to combined race-gender discrimination. The Illinois Court has held that the focus of Batson is on of the exclusion of members a single group, identifiable of groups together. not different considered People Harris, Ill. 2d the Illinois Supreme Court specifically has not addressed question the of whether Batson is applicable to combined race-gender In People discrimination. v. Washington, (1993), the appellate court upheld the ruling defendant, trial court’s that the who had asserted jurors that certain by they were stricken the State because were “black males,” had the requisite prima showing, failed make and facie it stated did not believe Batson applied alleged combined race- gender Rivera, discrimination. In a upon by majority, case relied the the of addressing “race-gender” the issue combined discrimination, previously claims that “this court has found chal such Rivera, lenges impermissible under Batson.” Ill. App. 3d at 829. In the trial instant court’s failure to articulate the prima circumstances that a case of purposeful demonstrate facie discrimination leaves of whether question unanswered the court’s finding race-gender Batson violation was based on combined judge, by collapsing stages discrimination. The trial the Batson and failing findings clarify to make fact to regarding record demonstrating prima relevant case of purposeful circumstances facie discrimination, proper race-gender has made review of issue this impossible. sponte

For trial court to sua raise resolve revers e-Batson three-step requires process claim adherence to the articulated Bat- (1) trial together following: balancing son with the court’s discre- manage supervise tion and control before it and to voir proceedings (2) assuming an demonstrating impartiality by not adversarial dire\ (3) role; challenge jury in the recognizing role (4) process; guarding equal protection selection jurors, free potential litigants, as well as selection from discrimination. challenge, e-Batson properly the trial court raised revers

While process articulated three-step failed to follow process, Step of the Batson resolving Batson in selection, not purposeful case of discrimination prima facie by the reverse- judge, raising The trial judge. the trial addressed making record challenge sponte without discrimination, the circum- examination of case of eliminated facie demonstrating aprima purposeful stances judge followed The sua e-Batson revers using for his provide explanations defense counsel to requesting challenging defense counsel from peremptory challenge precluded opportunity no to prima existence case. Defense counsel had facie challenge judge case the trial prima the existence of because facie race- bypassed had issue when he asked defense counsel for to be Eliminating step collapsed ought neutral what explanations. selec- into an undifferentiated review of three-step process process. tion by challenge raised sua sponte the context the revers e-Batson mindless, mindful, three-step trial not judge, adherence necessary opportunity analysis

Batson is to allow defense counsel mindful, A not mind- prima to the existence case. facie less, analysis necessary is to three-step adherence Batson provide reviewing fully developed court a record to determine Supreme whether the circumstances articulated the Illinois Court prima case. A mind- Williams demonstrate existence facie ful, mindless, neces- three-step analysis not adherence to the Batson sary finding court’s of a Batson violation determine whether the so, discrimination, and if race-gender on was based combined to alleged race-gender determine whether Batson combined applies Garrett, Ill. jurisdiction (People v. We should retain (1990)) remanding three-step hearing on while Batson court or parties record additional record present determining Batson issue. make for purpose decide to first the trial court should Regarding step three-part process, in this examine discussed previously the relevant circumstances Illinois Williams dissent and articulated engaged determine whether defendant has found, selection. If a Batson violation is on clarify is based court should further whether the violation gender discrimination. combined-race

Case Details

Case Name: People v. Rivera

Court Name: Appellate Court of Illinois

Date Published: May 7, 2004

Citation: 810 N.E.2d 129

Docket Number: 1-00-3871

Court Abbreviation: Ill. App. Ct.