People v. Garrett

• Decision Date: 21 November 1990
• Docket Number: No. 69570,69570
• Citation: 564 N.E.2d 784,151 Ill.Dec. 329,139 Ill.2d 189
• Court: Illinois Supreme Court
• Parties: , 151 Ill.Dec. 329 The PEOPLE of the State of Illinois, Appellant, v. Johnny GARRETT, Appellee.

Page 784

564 N.E.2d 784

139 Ill.2d 189, 151 Ill.Dec. 329

The PEOPLE of the State of Illinois, Appellant, v. Johnny GARRETT, Appellee.

No. 69570.

Supreme Court of Illinois.

Nov. 21, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and renee goldfarb, asst. state's atty., and marilyn Schlesinger, Sp. Asst. State's Atty., of counsel), for the People.

Randolph N. Stone, Public Defender, Chicago (Mark Stein, Asst. Public Defender, of counsel), for appellee.

Justice STAMOS delivered the opinion of the court:

This cause presents questions of appellate procedure and of substance regarding Batson hearings, which are designed to ascertain whether purposeful racial discrimination in jury selection has been practiced by the State. See Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

Following a jury trial in the circuit court of Cook County, defendant, Johnny Garrett, was convicted of criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(1)) and sentenced to an extended term of 16 years' imprisonment. After the jury was sworn, defendant, citing Batson, had moved to "strike" it on the ground that the State exercised six of seven peremptory challenges against black venirepersons. The trial court had then denied the motion. Our review of the record on appeal reveals indications, such as the State's argument at the Batson hearing and defendant's arrest report, that defendant is black; the parties do not dispute defendant's race, though defendant's brief never expressly avers it.

On appeal, the appellate court affirmed defendant's conviction and sentence in all respects except as to the trial court's ruling on the Batson issue. On that issue, the appellate court remanded with directions for a hearing "on the present record and any additional record the parties decide to make." 188 Ill.App.3d 1107 (unpublished order under Supreme Court Rule 23).

Under the directions of the appellate court (which cited People v. Colley (1988), 173 Ill.App.3d 798, 813-14, 123 Ill.Dec. 678, 528 N.E.2d 223, as precedent), the trial court was to "confirm" defendant's conviction and sentence if the trial court found that the State did not purposefully discriminate; however, if the trial court found to the contrary, the trial court was to order a new trial. We then granted the State's petition for leave to appeal (107 Ill.2d R. 315(a)).

I. JURISDICTION

Before addressing the substantive Batson issues in this cause, we must illuminate an appellate procedural point. The appellate court's choice of procedure in disposing of this case is traceable through Colley and two other cases to an Iowa Supreme Court ancestor. (See People v. Johnson (1987), 159 Ill.App.3d 991, 112 Ill.Dec. 243, 513 N.E.2d 852; People v. Johnson (1986), 148 Ill.App.3d 163, 105 Ill.Dec. 402, 504 N.E.2d 502, appeal after remand (1990), 199 Ill.App.3d 798, 145 Ill.Dec. 795, 557 N.E.2d 565; Saadiq v. State (Iowa 1986), 387 N.W.2d 315.) However, there was a crucial difference in the Iowa court's mode of disposition: That court specified the respective rights of appeal that the parties would have after proceedings in the lower court on remand. (See Saadiq, 387 N.W.2d at 329.) Our appellate court in the present cause and in the cited Illinois cases omitted any such specification--and properly so, since our appellate court does not possess this court's or the Iowa Supreme Court's rulemaking or supervisory powers. (See Ill. Const.1970, art. VI, §§ 4(b), (c), 6, 16; People ex rel. Stamos v. Jones (1968), 40 Ill.2d 62, 237 N.E.2d 495; People v. Krison (1978), 63 Ill.App.3d 531, 537, 20 Ill.Dec. 471, 380 N.E.2d 449; People v. Marotta (1971), 3 Ill.App.3d 280, 278 N.E.2d 256; People v. Kennedy (1968), 101 Ill.App.2d 91, 95, 242 N.E.2d 278, aff'd (1969), 43 Ill.2d 200, 251 N.E.2d 209; Iowa Const., art. V, § 4; Iowa Code Ann. §§ 602.1201, 602.4102, 602.4201 (West 1988).) The result, however, was to leave the issue of post-remand appellate procedure murky.

An example of further murkiness, outside the cited chain of cases, can be found in People v. Harris (1989), 182 Ill.App.3d 114, 119, 121, 130 Ill.Dec. 648, 537 N.E.2d 977, where the main body of the opinion stated that the circuit court judgment would "be deemed affirmed" if no discrimination were found on remand and if no further review were sought in the appellate court, but that a new trial was to be ordered if discrimination were found, while the final paragraph stated simply that the circuit court judgment had been "affirmed in part and remanded with instructions." See also People v. Whaley (1989), 184 Ill.App.3d 459, 464, 466, 132 Ill.Dec. 681, 540 N.E.2d 421 (if discrimination found on remand, judgment and sentence "are vacated" and new trial ordered; otherwise, judgment and sentence "are affirmed"); People v. Mays (1988), 176 Ill.App.3d 1027, 1046, 127 Ill.Dec. 14, 532 N.E.2d 843; People v. McNeal (1987), 160 Ill.App.3d 796, 806, 112 Ill.Dec. 288, 513 N.E.2d 897.

Such methods of disposing of a cause in the appellate court may leave the parties to wonder when the time for appeal begins and ends, to and from which court an appeal should be taken, and on what issues. Unnecessary questions are raised regarding when and by what court an appealable judgment on one or more issues is to be considered as having been entered. In addition, contradictory statements of the court's judgment are fostered. It would have been preferable if the appellate court in the present cause had simply retained jurisdiction while remanding for a Batson hearing, as this court did when deciding People v. Hooper (1987), 118 Ill.2d 244, 107 Ill.Dec. 250, 506 N.E.2d 1305, and while considering People v. Hope (1990), 137 Ill.2d 430, 148 Ill.Dec. 252, 560 N.E.2d 849. Technically, this court disposed of Hooper and the original Batson question in Hope by supervisory order, which, of course, is a type of order that only the supreme court is empowered to enter as such (see Ill. Const.1970, art. VI, § 16); but, just as the appellate court is empowered in civil appeals under our Rule 366(a)(5) (107 Ill.2d R. 366(a)(5)) to "make any other and further orders * * * that the case may require," so is the appellate court empowered in criminal appeals by Rule 615(b)(2) to "modify" any "proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken." (Emphasis added.) (107 Ill.2d R. 615(b)(2).) Here, for purposes of Rule 615(b)(2), the appeal to the appellate court was taken from the trial court's order that denied defendant's motion to strike the jury; necessarily, the trial court's original hearing on defendant's motion was not "subsequent to" the denial order, but the correctness of the manner of conducting the hearing was, in the sense of Rule 615(b)(2), "dependent upon" the correctness of that order. (See also Ill.Rev.Stat.1989, ch. 37, par. 33 (stating that appellate court has "all power and authority necessary to carry into complete execution all its judgments and determinations in all matters within its jurisdiction").) The appellate court is empowered under Rule 615(b) to remand a cause for a hearing on a particular matter while retaining jurisdiction. (See also 5B C.J.S. Appeal & Error § 1836 (1958) (reviewing court may, without decision, remand cause to permit further evidence, to determine issues or questions, or to make findings).) Therefore, in practical terms, the appellate court could have emulated the Hooper and Hope procedure. Then, after Batson proceedings on remand had been completed and any supplementary appellate issues had been briefed and argued, the appellate court could have announced its judgment on all pending issues.

In fact, the appellate court in People v. Jones (1988), 177 Ill.App.3d 663, 126 Ill.Dec. 858, 532 N.E.2d 543, employed the correct procedure when it remanded on a Batson issue while withholding decision on a sentencing issue and retaining jurisdiction. When it later resumed consideration of the case, the court affirmed on the sentencing issue and on two additional Batson issues that were raised after the hearing on remand. People v. Jones (1989), 185 Ill.App.3d 208, 133 Ill.Dec. 324, 541 N.E.2d 161; see also People v. Allen (1987), 168 Ill.App.3d 397, 118 Ill.Dec. 479, 521 N.E.2d 1172 (similar disposition).

Had the appellate court followed the Jones- Allen procedure in the present cause, there would be no appeal here, if at all, until the Batson hearing had been held and the appellate court had entered a final judgment on all issues. In addition, the timetable and avenue for further review would have been clearcut, and this court's docket might have been less burdened.

Still, despite the inconclusive nature of the appellate court's judgment, we are satisfied that we have jurisdiction of this cause. Our rules contemplate review of interlocutory judgments--as in the present appeal, which involves only the remand portion of the appellate court's judgment--even though such review is not favored. (107 Ill.2d Rules 315(a), 318(b), 612(b); cf. People v. Breen (1976), 62 Ill.2d 323, 326, 342 N.E.2d 31 (when case was appropriate for exercise of supervisory authority, finality of order from which appeal was sought did not need to be considered).) Continuing uncertainties in Batson law justify our exercise of jurisdiction here. We turn now to the Batson issue itself.

II. BATSON ISSUE

The State contends that the appellate court erred in remanding the cause and that the trial court was correct in denying defendant's motion to dismiss the jury, because that denial was supported by a record that discloses a failure by defendant to establish a prima facie case under Batson. In order to assess this contention, we shall first review the relevant facts of voir dire and the Batson claim as they appear from the trial court record and then describe in more detail than previously the...