People v. Jones

• Decision Date: 23 June 1989
• Docket Number: No. 2-87-0002,2-87-0002
• Parties: , 133 Ill.Dec. 324 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brenda M. JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 161

541 N.E.2d 161

185 Ill.App.3d 208, 133 Ill.Dec. 324

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brenda M. JONES, Defendant-Appellant.

No. 2-87-0002.

Appellate Court of Illinois Second District.

June 23, 1989.

Rehearing Denied July 27, 1989.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill (argued), Office of the State Appellate Defender, Elgin, for Brenda M. Jones.

Robert F. Casey, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, Cynthia N. Schneider (argued), State's Attys. Appellate Prosecutor, Elgin, Gary V. Johnson, Kane County State's Atty., Geneva, for people.

SUPPLEMENTAL OPINION

Justice REINHARD delivered the opinion of the court:

Defendant, Brenda M. Jones, was found guilty following a jury trial in the circuit court of Kane County of unlawful delivery of a substance containing less than 15 grams of cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)). She was sentenced to a 30-month probationary term, conditioned, in part, upon receiving a drug and alcohol evaluation from the Kane County Diagnostic Center and upon her following its recommended course of treatment.

In her appeal, defendant initially raised two issues: (1) whether she should receive a new trial because, although the trial judge made findings which amounted to a determination that the prosecutor failed to provide a race neutral explanation for his peremptory challenge of the only black person in the venire, he misapplied the law and denied her motion for a mistrial; and (2) whether the trial court improperly delegated its sentencing authority by ordering defendant, as a condition of probation, to submit to a drug-evaluation program and to comply with any treatment recommended by the program.

In our original opinion in this case, People v. Jones (1988), 177 Ill.App.3d 663, 126 Ill.Dec. 858, 532 N.E.2d 543, we considered only the first issue raised, that concerning the prosecutor's peremptory challenge of the only black person in the venire, and remanded to the circuit court to conduct a hearing under the principles enunciated in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, retaining jurisdiction to review the circuit court's decision following a Batson hearing and for consideration of the sentencing issue raised, but not decided, in our original opinion. The circuit court conducted the hearing and found that defendant had failed to establish a prima facie case of discrimination and, even if a prima facie case was shown, the prosecutor presented a racially neutral explanation for discharging the juror.

On return of the case to this court, defendant raises two additional issues: (1) whether her absence from the proceeding below requires another remandment for a new Batson hearing where she is present, and (2) whether the findings of the circuit court following the Batson hearing were an abuse of discretion.

During voir dire in the original trial, the prosecuting attorney exercised a peremptory challenge against Donald Sivels, the only black member of the venire. Defendant is also black. At that point, defense counsel asked, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to hear an explanation as to why Sivels was excused. He noted that defendant and Sivels were of an identifiable racial grouping, that Sivels was the only black man in the venire, and that Batson allowed him to shift the burden to the State to explain the challenge.

The trial judge responded that he believed it was up to the assistant State's Attorney to offer an explanation of why he excused Sivels. The assistant State's Attorney stated, in this regard, that he challenged Sivels because Sivels demonstrated a hesitancy when answering questions concerning whether or not he had strong feelings about the sale or possession of illegal drugs. He further maintained that he was concerned because Sivels had previously served on a civil jury and that he was afraid Sivels would confuse the burdens between the civil and criminal cases.

At that time, the trial judge stated that, although he was not totally familiar with the Batson decision, he believed, based on the questioning and answers of Sivels, that there had not been a showing of cause to excuse Sivels. He also noted that if he had been the assistant State's Attorney, he would not have excused Sivels by use of a peremptory challenge.

At the hearing on remand, the court noted that defendant was not present. Defense counsel indicated that he wrote to defendant at her last known address informing her that the hearing was to be held on February 10, 1989. Defense counsel further stated that, assuming defendant received the letter, she had elected not to appear. The trial court asked if defense counsel was waiving defendant's presence, to which defense counsel replied, "I'm asking that her presence be waived." The trial court then asked if defense counsel meant for purposes of the hearing, to which defense counsel responded, "Yes, sir." The hearing was conducted without defendant being present.

As to the Batson issue, defense counsel pointed to juror Sivels' employment with the Department of Corrections, that he had a friend who is a police officer, that he had been a plaintiff in a prior lawsuit, that he had been a juror in a civil case, and that he had been a victim of a burglary, as indicating that Sivels would be a juror favorable to the State. He further noted that Sivels' answer to a question regarding drug use during voir dire indicated that he thought it was against the law and wrong.

Defense counsel also focused on several white venirepersons who responded to questions regarding drugs. One venireperson appeared hesitant before answering one answered that he had no strong feelings about drugs, and one indicated that she had no personal feelings about persons who use or sell drugs. Defense counsel essentially argued that comparing Sivels to those venirepersons demonstrates a prima facie case of discrimination. The trial court then allowed the State to rebut defendant's prima facie argument.

The State relied on People v. Evans (1988), 125 Ill.2d 50, 125 Ill.Dec. 790, 530 N.E.2d 1360, in arguing that there are no relevant facts and circumstances which give rise to an inference of racial discrimination in this case. The State pointed out that there is no pattern of strikes because only one black venireperson was challenged, that the prosecutor's questions and statements do not indicate a racial motivation in challenging Sivels, that the number of peremptory challenges is not disproportionate in terms of the number used to strike blacks because of the four peremptory challenges used, only one was used to strike a black, and that the race of the defendant and the State's principal witness is the same.

At the conclusion of the State's rebuttal argument and before determining whether defendant has established a prima facie case of purposeful discrimination, the trial court allowed the State to argue its racially neutral reasons for excusing Sivels. The State first offered, as a racially neutral explanation for excusing Sivels, that Sivels hesitated in answering a question regarding drug use and sales. At that point, the trial court referred the prosecutor to his remarks at the prior trial in which the prosecutor stated that he peremptorily challenged Sivels for two reasons, that he hesitated when responding to questions about drugs and that he had been a juror in a civil trial. The prosecutor indicated that he was adopting those same reasons as racially neutral explanations in this hearing as well.

The trial court found that based on his recollection and review of the record there was no indication of racial discrimination in striking Sivels. The trial judge further observed that during his 3 1/2 years trying felony jury cases in Kane County he never perceived discriminatory exclusion of minorities from juries. Further, he has observed the prosecutor in this case try numerous cases involving minorities, and he has never felt that the prosecutor had participated in any racially discriminatory jury-selection practices. The trial court also found, based upon his recollection of Sivels and review of the record, that Sivels did hesitate in answering the question regarding drugs.

The trial court then ruled that defendant failed to establish a prima facie case of purposeful discrimination by the prosecutor. Alternatively, the trial court ruled that even if a prima facie case was established, the State offered a racially neutral explanation for peremptorily challenging Sivels.

Defendant initially contends that because she was absent from the hearing on remand she was denied her right to be present which affects her substantial rights. She also argues that the letter mailed to her last address was inadequate notice to her of the hearing and further "notes" that the Kane County Public Defender's office, which represented her at the original trial, may not have properly represented her at the Batson hearing as it is "conceivable" she may not have qualified at the Batson hearing as indigent or she may have wanted to have another attorney.

The record shows that at the hearing on remandment the assistant public defender, who also represented her at her original trial, appeared and stated to the court that he wrote defendant at her last known address and indicated the hearing would be held on that day. He further stated that he assumed she received the letter and had elected not to appear. He waived her presence. On this record, we cannot determine whether defendant was notified or not or whether she wanted other counsel. Whether there are facts outside the record which might show a substantial denial of her constitutional rights in this regard is a matter that may lie within the Post-Conviction Hearing Act (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.). Even assuming defendant was not...