People v. A.S. (In re A.S.)

• Decision Date: 31 March 2017
• Docket Number: No. 1-16-1259,1-16-1259
• Citation: 76 N.E.3d 786,2017 IL App (1st) 161259 -B
• Parties: IN RE A.S., a Minor (The People Of The State Of Illinois, Petitioner-Appellee, v. A.S., a Minor, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161259 -B

76 N.E.3d 786

IN RE A.S., a Minor

(The People Of The State Of Illinois, Petitioner-Appellee,

v.A.S., a Minor, Respondent-Appellant).

No. 1-16-1259

Appellate Court of Illinois, First District, SECOND DIVISION.

March 31, 2017

Rehearing denied May 5, 2017

Michael J. Pelletier, Patricia Mysza, and Rebecca Cohen, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Iris G. Ferosie, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 This matter is before us following remand to the circuit court of Cook County to conduct a further hearing pursuant to Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to address respondent's claim that the State improperly used peremptory challenges to strike prospective black jurors during jury selection in his delinquency proceedings. In our earlier opinion in this case, we found that the trial court had improperly collapsed the second and third stages of the Batson hearing and, further, had not elicited any race-neutral reason from the State for its use of a peremptory against one prospective black juror, and therefore, we remanded for a resumed hearing. In re A.S. , 2016 IL App (1st) 161259, ¶¶ 40, 47, 408 Ill.Dec. 263, 65 N.E.3d 485. We retained jurisdiction to further consider respondent's Batson challenge, if necessary.

¶ 2 Following the hearing on remand, the trial court concluded that the State had proffered race-neutral reasons for exercising peremptory challenges against all four black members of the venire. Because we conclude that respondent sustained his burden to show, as to one juror, that the State's proffered race-neutral reason was pretextual, we reverse and remand for a new trial.

¶ 3 BACKGROUND

¶ 4 On March 23, 2015, A.S., then a 17-year-old African American, was charged with the March 20, 2015, residential burglary of a home belonging to a white woman. Following a jury trial,¹ A.S. was adjudicated delinquent of that offense and on May 11, 2016, was committed to the Juvenile Department of Corrections until his twenty-first birthday.

¶ 5 Our prior opinion discussed in detail the process of jury selection, and we will not repeat that discussion. As relevant to the issue here, both on the juror questionnaire and during the court's questioning of prospective jurors, members of the venire were asked whether they had "ever been accused of, a complainant or a witness in a criminal case?" As questioning of the panels was complete, the court and counsel would recess to chambers, and the State, in raising challenges for cause, would indicate that certain individuals had not disclosed criminal cases of which the State had a record. On the first day of jury selection, the State successfully challenged for cause Bill B., who had failed to disclose a driving under the influence (DUI) conviction. The State did not ask Bill B. any questions during voir dire.

¶ 6 Also on the first day of jury selection, the State disclosed that 56-year-old Connie T. had failed to disclose a prior criminal matter: a theft charge from 1977 for which she received supervision. The State proposed that she be stricken for cause. When the court wavered over the significance of a nearly 40-year-old theft case, the court asked the prosecutor whether she felt strongly enough about it to use a peremptory challenge. The prosecutor responded: "We have to be consistent so we have to ask." The court initially indicated that it would excuse Connie T. for cause but then agreed to have her questioned in chambers, and the following colloquy occurred:

"THE COURT: On your response, you mentioned to us that you had never been accused of a criminal case.

[CONNIE T.]: Not that I know of.

THE COURT: All right. Do you recall back in 1977 a—was it retail theft?

MR. MUNIZ [Assistant State's Attorney]: Theft.

THE COURT: You got a supervision is what they're saying. What's your birth date?

[CONNIE T.]: 1-22-59.

MR. MUNIZ: Yes, judge. Per the information that we ran, we have * * * a Connie [T.] with a birth date of January 22, 1959.

[CONNIE T.]: Yes.

MR. MUNIZ: We have a statute citation for theft.

THE COURT: A statute citation?

MR. MUNIZ: I mean the citation is for theft. Basically the statute that they're referencing is theft and [she] was sentenced to supervision back on January 6, 1978, out of Cook County.

[CONNIE T.] I remember now.

THE COURT: You remember?

[CONNIE T.]: Yes, sir.

THE COURT: What was that?

[CONNIE T.]: I was in Carson's, and my boyfriend was putting something in my purse and I didn't know, so when we walked out of the door in Evergreen Plaza they stopped me and not him."

When asked by defense counsel whether she intentionally omitted that information from her questionnaire, Connie T. responded, "Oh no, sir. I completely forgot about it." The State did not ask Connie T. any questions.

¶ 7 After she left, the State still proposed to excuse Connie T. for cause. When the court refused, the State did not press the issue by expressing its belief that Connie T. had lied about failing to remember the 1977 case. The State then used peremptories to strike both Connie T. and Madelyn B., another black member of the venire. At that point, the State had used three peremptories to strike black members of the venire, which prompted respondent's Batson challenge.

¶ 8 The court declined at that point to find that respondent had established a prima facie case. Without requesting the State to indicate why it had exercised peremptories against black members of the venire, the court observed that the State had demonstrated "some consistency" in requesting the dismissal for cause of any members of the venire who had failed to disclose prior criminal matters. With respect to Connie T., the court stated: "the State was consistent with their statement that they didn't want Connie [T.] on because she also quote ‘lied,’ if you want to use that term. I found that she didn't so they were forced to use a peremptory challenge." (Emphasis added.) The court drew a distinction between Connie T. and other members of the venire stricken for failure to disclose more serious matters, stating, "I didn't give [the State] challenge for cause because I think that could be an honest mistake 40 years ago, supervision. Theoretically, it's not a conviction. People don't understand the distinction sometimes." The trial judge also noted that when he represented clients in criminal matters in which they received supervision, he used to tell them, "you were never convicted. You don't have to tell people."

¶ 9 The following day before jury selection resumed, counsel for respondent renewed his Batson challenge via a motion for a mistrial, but the court adhered to the previous day's ruling.

¶ 10 The next black member of the venire questioned was Joe W. After he was questioned by the court, Joe W. volunteered, "I'm beginning to feel bad now actually. I got medical conditions." He further revealed he was an insulin-dependent diabetic and had high blood pressure

, cholesterol problems, and glaucoma. In chambers with counsel, the court raised the possibility of dismissing Joe W. for cause given his health issues, but counsel for respondent asked that he be brought in for questioning. At that point, the State revealed that Joe W. had a 13-year-old DUI conviction that he did not disclose on his juror questionnaire or during the court's questioning.

¶ 11 When Joe W. was questioned in chambers, he indicated that he had numerous health issues and was taking several different medications. The court inquired about his DUI conviction:

"Q. * * * Now there is a question for a prior arrest for DUI. Do you recall that?

A. Yeah, 2003. I forgot about that. I was with the VA."

When Joe W. explained that he had been pulled over after drinking all night following his brother's funeral, the court asked: "So did you just forget about it when you did it?" Joe W. responded:

"A. Your Honor, that's what I'm saying [.] [S]ometimes I am right there and then again I can't remember yesterday hardly."

In response to questions from defense counsel, Joe W. elaborated that when asked about criminal cases, he associated the question with criminal matters like "boom, boom" and "wasn't even thinking of the DUI as a criminal deal." Joe W. further indicated that he thought he could serve on the jury if the court accommodated his health issues by taking breaks as necessary. The State did not ask Joe W. any questions.

¶ 12 After Joe W. left chambers, the following colloquy occurred:

"MS. DAWKINS [Assistant State's Attorney]: I'm assuming that you are not going to excuse him for cause.

THE COURT: I'm convinced he can make it.

MS. DAWKINS: So with respect to the arrest.

THE COURT: No."

At that point, although it had exercised only four of its seven peremptory challenges, the State accepted Joe W.

¶ 13 Once 12 jurors had been empaneled, the parties commenced questioning of alternate jurors. When the State exercised a peremptory against the next black member of the venire, Rita J., the court sua sponte found that there was a prima facie Batson violation and proceeded to ask the State to articulate race-neutral reasons for its use of peremptories. The court's sua sponte finding was based solely on the number of black venire members challenged by the State, a factor that, standing alone, is generally insufficient to make out a prima facie case. People v. Rivera , 221 Ill.2d 481, 513-14, 304 Ill.Dec. 315, 852 N.E.2d 771 (2006) ; People v. Garrett , 139 Ill.2d 189, 203, 151 Ill.Dec. 329, 564 N.E.2d 784 (1990). Nevertheless, in our earlier opinion, we examined the relevant factors and determined that the respondent, in fact, established a prima facie case and that the State was properly required to articulate race-neutral reasons for its use of peremptory challenges against black members of the venire. In re A.S. , 2016 IL App (1st) 161259, ¶...