People v. Jones

• Decision Date: 22 December 1988
• Docket Number: No. 2-87-0002,2-87-0002
• Citation: 532 N.E.2d 543,177 Ill.App.3d 663,126 Ill.Dec. 858
• Parties: , 126 Ill.Dec. 858 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brenda M. JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 543

532 N.E.2d 543

177 Ill.App.3d 663, 126 Ill.Dec. 858

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.

Dec. 22, 1988.

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

Robert F. Casey, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, Cynthia N. Schneider, argued, State's Attorneys Appellate Prosecutors, Elgin, Gary V. Johnson, Kane County State's Attorney, Geneva, for the People.

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.

On appeal, defendant raises 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 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.

During voir dire, 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.2d69, 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. Defense counsel then moved for a mistrial which was denied. In denying defendant's motion, the trial judge stated that the assistant State's Attorney "has a right to make peremptory challenges and he has exercised that right." Defendant was subsequently found guilty, and, as no issue is raised on the trial proceedings, we need not summarize the evidence adduced.

In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination in jury selection by the prosecuting attorney solely on the basis of evidence relating to the prosecutor's use of peremptory challenges at defendant's trial. (Batson, 476 U.S. at 96, 106 S.Ct. 1722-23, 90 L.Ed.2d at 87-88.) The court stated further, that, in order to establish a prima facie case, the defendant must demonstrate that she is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove members of that group from the venire. Defendant is entitled to rely upon the fact that the existence of peremptory challenges enables those who are of a mind to discriminate in the jury selection process to do so. Defendant must show that these and any other relevant facts raise an inference that the prosecutor used peremptory challenges to exclude members of the venire from the jury on account of their race. 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

The court stated in Batson that a pattern of strikes on the part of the prosecutor against members of defendant's race might give rise to an inference of purposeful discrimination, and the prosecutor's statements and questions during voir dire might either support or refute such an inference. (476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.) The court further stated:

"These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates [sic ] a prima facie case of discrimination against black jurors." 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

If the defendant establishes a prima facie case of purposeful discrimination, the burden shifts to the prosecutor to articulate a neutral explanation for challenging the juror or jurors. (476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.) The State contends that defendant failed to establish a prima facie case of purposeful discrimination and that the prosecutor provided two legitimate neutral explanations for exercising a peremptory challenge against Donald Sivels.

Our supreme court has recently elaborated on what relevant circumstances a trial court may consider in deciding whether a defendant has established a prima facie case of discrimination. In People v. Evans (1988), 125 Ill.2d 50, 63, 125 Ill.Dec 790, 530 N.E.2d 1360, the court stated that such relevant circumstances include: a "pattern" of strikes against black jurors; the prosecutor's questions and statements during voir dire and in exercising his challenges; the disproportionate use of peremptory challenges against blacks; the level of black representation in the venire as compared to the jury; whether the excluded blacks are a heterogeneous group sharing race as their only common characteristic; the race of the defendant and victim; and the race of the witnesses. The Evans court emphasized that simply because black venirepersons are peremptorily challenged does not alone raise the inference of discrimination. (Evans, 125 Ill.2d at 63, 125 Ill.Dec. 790, 530 N.E.2d 1360.) A court must avoid arbitrarily deciding this question solely from the number of blacks peremptorily challenged. Evans, 125 Ill.2d at 64, 125 Ill.Dec. 790, 530 N.E.2d 1360.

Furthermore, the Evans court, as did the Batson court, emphasized that the initial determination of whether a defendant has established a prima facie case is left to the trial judge, who is in a superior position to determine whether the prosecutor's use of peremptory challenges was racially motivated. (Evans, 125 Ill.2d at 66, 125 Ill.Dec. 790, 530 N.E.2d 1360.) In Evans, the court noted that "[t]rial judges are especially well suited to make this determination because they are familiar with local conditions and prosecutors, and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one." (Evans, 125 Ill.2d at 67, 125 Ill.Dec. 790, 530 N.E.2d 1360.) Finally, in reviewing the trial court's determination in this regard, a reviewing court will not reverse the finding of the trial court unless such finding is against the manifest weight of the evidence. Evans, 125 Ill.2d at 64, 125 Ill.Dec. 790, 530 N.E.2d 1360.

In this case, although both the State and defendant present arguments in their briefs on the Batson issue, based on the record, we decline to review the issue under these circumstances. It is clear from the record that the trial court was not entirely familiar with Batson and did not proceed in a manner consistent with the dictates of that case. The court did not first decide whether the facts established, prima facie, purposeful discrimination. Also, although the State offered its reasons for excusing the black juror, the court further failed to evaluate, in accordance with Batson, whether the State offered a neutral explanation for the peremptory challenge. Consequently, the record in this case is insufficient to provide us with an adequate basis to review the Batson issue. Furthermore, because the trial court was unfamiliar with the standards set forth in Batson, it did not properly inject its own observations and judicial experience into the determination of whether the assistant State's Attorney used the peremptory challenge against Sivels in a discriminatory fashion. Thus, we remand to the trial court to conduct a full Batson hearing concerning the State's use of the peremptory challenge against Donald Sivels. See People v. Buckley (1987), 168 Ill.App.3d 405, 412-13, 118 Ill.Dec. 631, 522 N.E.2d 86; People v. Allen (1987), 168 Ill.App.3d 397, 400-01, 118 Ill.Dec. 479, 521 N.E.2d 1172.

Although we are remanding to the trial court for a Batson hearing, we are compelled to address an argument raised by the parties in their briefs. Defendant suggests that the single fact that the only black venireperson was peremptorily excused in this case was alone sufficient to establish a prima facie case under Batson. In so arguing, defendant relies on this court's previous decision in People v. Parker (1988), 166 Ill.App.3d 123, 116 Ill.Dec. 635, 519 N.E.2d 703 (Lindberg, P.J., specially concurring).

Based upon our close...