People v. Shaw

• Decision Date: 25 November 2014
• Docket Number: No. 4–12–1157.,4–12–1157.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Davey R. SHAW, Jr., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

21 N.E.3d 802

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Davey R. SHAW, Jr., Defendant–Appellant.

No. 4–12–1157.

Appellate Court of Illinois, Fourth District.

Nov. 25, 2014.

21 N.E.3d 803

Michael J. Pelletier, Jacqueline L. Bullard, and Duane E. Schuster, all of State Appellate Defender's Office, of Springfield, for appellant.

Randall Brinegar, State's Attorney, of Danville (Patrick Delfino, David J. Robinson, and Aimee Sipes Johnson, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

21 N.E.3d 804

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 In August 2009, the State charged defendant, Davey R. Shaw, Jr., with possession of a controlled substance (cocaine) (count I) (720 ILCS 570/402(c) (West 2008)), possession of cannabis (count II) (720 ILCS 550/4(a) (West 2008)), and resisting or obstructing a peace officer (count III) (720 ILCS 5/31–1(a) (West 2008)). After an October 2012 trial, a jury found defendant guilty of all three charges. In November 2012, defendant filed a motion for a new trial, which the trial court denied. In December 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364–day sentence for resisting or obstructing a peace officer and a 30–day sentence for possession of cannabis.

¶ 2 Defendant appeals, arguing the trial court (1) erred in refusing to conduct a Batson hearing (Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ); (2) erred in admitting evidence, over objection, and allowing argument that possession of cannabis was a “fine-only” offense; and (3) violated his constitutional right to confront witnesses when it heard witness testimony outside his presence. We agree the trial court failed to conduct a sufficient Batson hearing, and we remand with directions.

¶ 3 I. BACKGROUND

¶ 4 On August 10, 2009, the State charged defendant by information with possession of a controlled substance (cocaine), a Class 4 felony (count I) (720 ILCS 570/402(c) (West 2008)); possession of cannabis, a Class C misdemeanor (count II) (720 ILCS 550/4(a) (West 2008)); and resisting or obstructing a peace officer, a Class A misdemeanor (count III) (720 ILCS 5/31–1(a) (West 2008)).

¶ 5 Defendant's first jury trial ended in a mistrial. His second jury trial commenced on October 17, 2012. Because we remand for further proceedings on defendant's Batson challenges, we discuss only those facts related to the issue of alleged discrimination in the selection of the jury.

¶ 6 A. Voir Dire

¶ 7 The jury venire in this case consisted of 28 potential jurors, which the trial court divided into two groups of 14 venire members. No Batson issue was raised during consideration of the first panel of 14 potential jurors. In the second panel of potential jurors, the State used peremptory challenges on two African–American venire members and defendant raised respective Batson objections. The record establishes defendant is African–American.

¶ 8 Defendant raised his first Batson objection when the State sought to use a peremptory challenge on Esther Bynum. The following colloquy occurred:

“[PROSECUTOR]: We'd ask to excuse Miss Bynum.

[DEFENSE COUNSEL]: Your Honor, at this time I would like to raise a [Batson ] issue. Miss Bynum is the only black on this panel so far. She is a member of a cognizable racial group. The Prosecutor has used its [sic ] peremptory challenge to remove that venire member from the jury, and there are no facts or other relevant circumstances that would raise an inference that this was anything other than for race.

THE COURT: Mr. [Prosecutor].

[PROSECUTOR]: That's actually—I don't think this is the correct procedure. You have to show a pattern with regard to the State.

But with regard to Miss Bynum, the Court asked her if she could sign a

21 N.E.3d 805

guilty verdict, and she hesitated and had the Court basically re[-]ask the question. That was one of the reasons.

But I don't believe this is a proper inquiry under the nature of the case law at this point. There has to be a pattern shown with regard to the State kicking off jurors with regard to race.

[DEFENSE COUNSEL]: Your Honor, it would be difficult to establish a pattern where she is the only one to this point. Every other member of the jury to this point has been white. She is the first black person that we've reached.

THE COURT: The Court has determined that the Defendant has not established a pattern under Batson. ”

Accordingly, the court excused Bynum from the venire.

¶ 9 Defendant raised his second Batson objection when the State sought to use a peremptory challenge on Jacqueline Smith—the first person considered for alternate juror. The State had failed in its earlier attempt to remove Smith for cause. Regarding the State's use of a peremptory challenge on Smith, the following colloquy occurred:

“[PROSECUTOR]: Okay. The State would use [its last] challenge with regard to Miss Smith as we did before on cause.

[DEFENSE COUNSEL]: Your Honor, again I would raise a Batson issue. She is the second black person in this venire. Every single other person has been white. The State has now exercised peremptories against both blacks, and I would suggest that we now have a pattern.

[PROSECUTOR]: And if it helps, we'll accept Miss Williams.

THE COURT: Well, on the issue of Miss Smith, I don't think a pattern has been shown. There was an original motion to remove Miss Smith for cause because of her relationship with Mr. Shaw's family, and I denied the motion for cause. But I do not feel that there has been established a pattern with either Miss Bynum or Miss Smith.”

Accordingly, the trial court excused Smith from the venire. Thereafter, Natalie Williams, the third African–American in the venire, was accepted as the alternate juror.

¶ 10 B. Posttrial Proceedings

¶ 11 On November 9, 2012, defendant filed a motion for a new trial, asserting in relevant part that the trial court erred by (1) denying his request for a Batson hearing and (2) allowing testimony regarding possession of cannabis being a “fine-only” offense. Following a November 28, 2012, hearing on defendant's motion, the trial court took the matter under advisement. In a November 29, 2012, docket entry, the trial court denied defendant's motion for a new trial.

¶ 12 On December 17, 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364–day sentence for resisting or obstructing a peace officer and a 30–day sentence for possession of cannabis.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant asserts the trial court (1) erred in refusing to conduct a Batson hearing; (2) erred in admitting evidence and allowing argument that possession of cannabis was a “fine-only” offense; and (3) violated his constitutional right to confront witnesses when it heard witness testimony outside his presence.

21 N.E.3d 806

¶ 16 A. The Three–Step Batson Procedure

¶ 17 In Batson, the United States Supreme Court held “the Equal Protection Clause [of the United States Constitution (U.S. Const., amend.XIV, § 1) ] forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.” Batson, 476 U.S. at 89, 106 S.Ct. 1712. Accordingly, the Batson Court established a three-step process to evaluate claims of alleged discrimination during jury selection.

¶ 18 During the first step of a Batson hearing, “the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.” People v. Davis, 231 Ill.2d 349, 360, 326 Ill.Dec. 21, 899 N.E.2d 238, 245 (2008). “[T]he threshold for making out a prima facie claim under Batson is not high: ‘a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ ” Id. (quoting Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ). In determining whether the person alleging discrimination has established a prima facie case, the trial court “must consider ‘the totality of the relevant facts' and ‘all...