People v. Shaw, 4–15–0444.

• Decision Date: 29 April 2016
• Docket Number: No. 4–15–0444.,4–15–0444.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Davey R. SHAW, Jr., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

52 N.E.3d 728

402 Ill.Dec. 807

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Davey R. SHAW, Jr., Defendant–Appellant.

No. 4–15–0444.

Appellate Court of Illinois, Fourth District.

Filed April 29, 2016.

Rehearing Denied June 3, 2016.

Michael J. Pelletier, Jacqueline L. Bullard, and Erica A. Nichols Cook (argued), all of State Appellate Defender's Office, Springfield, for appellant.

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

OPINION

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

¶ 1 Following an October 2012, trial, a jury found defendant, Davey R. Shaw, Jr., guilty of possession of a controlled substance (cocaine) ( 720 ILCS 570/402(c) (West 2008)), possession of cannabis (720 ILCS 550/4(a) (West 2008)), and resisting or obstructing a peace officer (720 ILCS 5/31–1(a) (West 2008)). 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. Defendant appealed, 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 be present during sworn testimony. In November 2014, this court agreed with defendant's first contention and remanded the case to the trial court for a full Batson hearing. People v. Shaw, 2014 IL App (4th) 121157, 386 Ill.Dec. 883, 21 N.E.3d 802. We retained jurisdiction to review the trial court's ruling after remand and to address the remaining issues raised by defendant in his appeal.

¶ 2 On remand, the trial court conducted a full Batson hearing. The trial court entered a written order on May 5, 2015, in which it concluded defendant had failed to establish purposeful discrimination by the State during voir dire. The case now comes back to us for resolution of the Batson issue in light of the proceedings conducted on remand, with defendant asserting the trial court erred by accepting the State's race-neutral explanations for exercising peremptory challenges. Defendant also argues for the first time that the trial court erred when it ordered the balance of defendant's bond to be reimbursed to the public defender's office without having provided defendant with notice or a hearing to determine defendant's ability to pay the public defender fee. In addition, we now consider the remaining issues over which we retained jurisdiction relating to the admissibility of certain evidence and defendant's constitutional right to be present during certain sworn testimony. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On August 10, 2009, the State charged defendant by information with possession of a controlled substance (cocaine) (720 ILCS 570/402(c) (West 2008)), possession of cannabis (720 ILCS 550/4(a) (West 2008)), and resisting or obstructing a peace officer (720 ILCS 5/311(a) (West 2008)).

¶ 5 A. Voir Dire

¶ 6 Defendant's first jury trial ended in a mistrial. His second jury trial commenced on October 17, 2012.

¶ 7 The jury venire consisted of 28 prospective jurors, whom the trial court divided into two panels of 14 venire members. No Batson issue was raised during consideration of the first panel of 14 prospective jurors. In the second panel of prospective jurors, the State used peremptory challenges to excuse two African–American venire members and defendant raised respective Batson objections. The record establishes defendant is African–American.

¶ 8 During voir dire, the trial court asked the first panel of prospective jurors the following question: “If after you hear everything,—the evidence, the arguments, and my instructions on the law—you believe that the State has proved its case beyond a reasonable doubt, will you sign a guilty verdict form?” The following colloquy then occurred:

“[THE COURT]: Mrs. O'Kane?

JUROR O'KANE: Could you repeat that, please.

THE COURT: Sure. If after you hearing everything,—the evidence, the arguments, and my instructions on the law—you believe that the State has proved its case beyond a reasonable doubt, will you sign a guilty verdict form?

JUROR O'KANE: Yes.”

The court proceeded to address the other venire members in the first panel by name and all responded affirmatively to the court's question. The court repeated this question to each venire member in the second panel. After the first three prospective jurors responded affirmatively, the following colloquy occurred:

“THE COURT: Miss Bynum?

JUROR BYNUM: You said if I believed that the evidence—

THE COURT: Here is the question. I'm going to read it to you again; okay? If after you hear everything,—the evidence, the arguments, and my instruction on the law—you believe that the State has proved its case beyond a reasonable doubt, will you sign a guilty verdict form? Miss Bynum?

JUROR BYNUM: Yes.”

¶ 9 The trial court also asked prospective jurors to raise their hands if they had “any friends or relatives who [were] State's Attorneys, [d]efense attorneys, members of a police force, or involved in law enforcement?” After a brief discussion with one prospective juror in the second panel who had raised his hand, the following colloquy ensued:

“THE COURT: Okay. Anybody else in the first row?

JUROR HEIDRICK: Could you repeat that please?

THE COURT: Do you have any friends or relatives who are State's Attorneys [d]efense attorneys, members of a police force, or involved in law enforcement?

JUROR HEIDRICK: I have friends that are on the police force but not the ones you mentioned.”

¶ 10 The trial court also asked the jury venire whether they, or a close friend or family member, had been charged with an offense similar to possession of a controlled substance, possession of cannabis, and resisting or obstructing a police officer. Juror Chamberlain indicated a close friend of hers was recently charged with possession of a controlled substance and that the case was pending. Juror English stated he had several family members who had been charged with possession of a controlled substance, some of whose cases were pending. Juror Llama stated she pleaded guilty to a possession charge in 1998. Juror King indicated her nephew had been charged with possession approximately five years prior. Juror Smith stated her boyfriend was recently charged with possession and his case was pending. All of these prospective jurors stated that they could remain fair and impartial.

¶ 11 In addition, the trial court asked prospective jurors to raise their hands if they knew any of the possible witnesses in the case. The court listed each witness by name and if a prospective juror raised his or her hand, the court inquired further into the relationship. Juror O'Kane, who once held a position on the city council and whose son was a police officer, knew a number of the State's witnesses but stated she could be fair and impartial. Several other jurors also knew some of the identified police officers and the circuit clerk through their respective jobs, but all stated they could be fair and impartial.

¶ 12 Upon being asked whether anyone knew defendant, juror Smith raised her hand and informed the court that “[h]e was a friend of the family.” Smith stated she did not know defendant personally, but she was friends with his cousins and nieces. When asked whether her relationship with defendant's family would prevent her from being fair and impartial, Smith responded, “[n]o, Ma'am.” Juror Delanois also stated he knew defendant as he “was introduced to him by a personal friend” years before. When asked whether his relationship with defendant would prevent him from being fair and impartial, Delanois responded, “[n]o” and explained, “[a]ll I know is he was a friend of my friend, and that's pretty much it.”

¶ 13 Further, the trial court asked prospective jurors to raise their hands if they, or a close friend or family member, had ever been the victim of a crime. Juror Smith stated that her sister's car had been set on fire in 2010, that Smith's boyfriend was arrested for the crime, and that his case was pending due to a probation violation.

¶ 14 Following voir dire questioning, the prosecutor asked to excuse juror Smith for cause, stating, “I believe she's friends with the [d]efendant's family, and also her boyfriend has some current cases going on, so I'm not sure. And also her boyfriend is represented by the Public Defender's Office.” Defense counsel noted Smith said she could be fair and impartial and stated, “[l]ike all the other jurors who have friends and know people, I mean, it's a small town. I don't think that's a reason to strike her for cause.” The court declined to exclude Smith for cause. Thereafter, the State used peremptory challenges to exclude several jurors, including juror Chamberlain.

¶ 15 The State used its fifth peremptory challenge to exclude juror Bynum, at which point defense counsel raised a Batson challenge, arguing that Bynum was the only African–American on the panel so far and that “ [t]he 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 prosecutor responded, in relevant part, that “the Court asked [Bynum] if she could sign a guilty verdict, and she hesitated and had the Court basically re[-]ask the question. That was one of the reasons.” In addition, the prosecutor informed the court that defendant had to show a pattern of “ kicking off jurors with regard to race” under Batson. Thereafter, the court announced that defendant “ha[d] not established a...