                                  Illinois Official Reports

                                          Appellate Court



                              People v. Shaw, 2014 IL App (4th) 121157



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DAVEY R. SHAW, JR., Defendant-Appellant.


District & No.               Fourth District
                             Docket No. 4-12-1157



Filed                        November 25, 2014


Held                         Defendant’s convictions for possession of cocaine, possession of
(Note: This syllabus         cannabis, and resisting or obstructing a peace officer were remanded
constitutes no part of the   for a sufficient Batson hearing, and the appellate court would retain
opinion of the court but     jurisdiction to review the trial court’s ruling on remand and to review
has been prepared by the     the remaining issues raised by defendant in his appeal with
Reporter of Decisions        supplemental briefs from the parties with respect to any issues arising
for the convenience of       from the hearing on remand.
the reader.)



Decision Under               Appeal from the Circuit Court of Vermilion County, No. 09-CF-393;
Review                       the Hon. Nancy S. Fahey, Judge, presiding.



Judgment                     Remanded with directions.

Counsel on                   Michael J. Pelletier, Jacqueline L. Bullard, and Duane E. Schuster, all
Appeal                       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.
     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Justices Holder White and Steigmann concurred in the judgment and
                              opinion.


                                               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 (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:

                                                   -2-
                   “[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 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

                                                   -3-
       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.

¶ 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. 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, 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 (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 relevant circumstances’
       surrounding the peremptory strike to see if they give rise to a discriminatory purpose.” Id.
       (quoting Batson, 476 U.S. at 94, 96-97). The relevant factors the court should consider include
       the following:
                “ ‘(1) racial identity between the [party exercising the peremptory challenge] and the
                excluded venirepersons; (2) a pattern of strikes against African-American
                venirepersons; (3) a disproportionate use of peremptory challenges against
                African-American venirepersons; (4) the level of African-American representation in
                the venire as compared to the jury; (5) the prosecutor’s questions and statements [of the
                challenging party] during voir dire examination and while exercising peremptory
                challenges; (6) whether the excluded African-American venirepersons were a
                heterogenous group sharing race as their only common characteristic; and (7) the race
                of the defendant, victim, and witnesses.’ ” People v. Rivera, 221 Ill. 2d 481, 501, 852
                N.E.2d 771, 783-84 (2006) (quoting People v. Williams, 173 Ill. 2d 48, 71, 670 N.E.2d
                638, 650 (1996)).



                                                    -4-
       In addition, a “comparative juror analysis” is another factor for the court to take into
       consideration in determining the existence of a prima facie case. Davis, 231 Ill. 2d at 362, 899
       N.E.2d at 246. A comparative juror analysis examines “ ‘a prosecutor’s questions to
       prospective jurors and the jurors’ responses, to see whether the prosecutor treated otherwise
       similar jurors differently because of their membership in a particular group.’ ” Id. at 361, 899
       N.E.2d at 245-46 (quoting Boyd v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2004)). If the trial
       court–after considering “the totality of all the relevant facts and circumstances to determine
       whether they give rise to an inference of discriminatory purpose”–concludes the defendant
       established a prima facie case of discrimination in the selection of the jury, the court proceeds
       to the next step. Id. at 362, 899 N.E.2d at 246.
¶ 19       During the second step of the Batson hearing, the focus shifts to the prosecutor, who must
       articulate a race-neutral reason for striking the juror. Id. at 362-63, 899 N.E.2d at 246. Once the
       prosecutor establishes a race-neutral reason for striking the juror, the defendant may rebut the
       proffered reason as pretextual. Id. at 363, 899 N.E.2d at 247.
¶ 20       Finally, during the third step of the Batson hearing, “the trial court must determine whether
       the defendant has shown purposeful discrimination in light of the parties’ submissions.” Id.
       During this step, the court “must evaluate not only whether the prosecutor’s demeanor belies
       discriminatory intent, but also whether the juror’s demeanor can credibly be said to have
       exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. at 364, 899
       N.E.2d at 247.

¶ 21                              B. Defendant’s Batson Objections
¶ 22       In this case, defendant raised Batson objections immediately following the State’s
       peremptory challenges of two venire members, both of whom were African-American.

¶ 23                                1. Defendant’s First Batson Objection
¶ 24        Defendant made his first Batson objection after the State exercised a peremptory challenge
       on Bynum, arguing, “there are no facts or other relevant circumstances that would raise an
       inference that this was anything other than for race.” Immediately thereafter, the trial court
       addressed the prosecutor, evidently seeking his input on the matter. The prosecutor responded,
       “I don’t think this is the correct procedure. You have to show a pattern with regard to the State.
       *** There has to be a pattern shown with regard to the State kicking off jurors with regard to
       race.” The prosecutor, nevertheless, asserted his reason for dismissing Bynum was due to her
       “hesitation” in answering a specific question during voir dire. Defendant countered that it
       would be impossible to show a pattern where Bynum was the first African-American venire
       member to be considered. Without further elaboration by either party, the court excused
       Bynum from the venire, concluding only “that the Defendant has not established a pattern
       under Batson.”
¶ 25        Initially, we note that while evidence of a pattern of discriminatory strikes is one factor a
       court should consider when determining whether the party challenging the peremptory strike
       has established a prima facie case under Batson, it is not a dispositive factor. See People v.
       Blackwell, 164 Ill. 2d 67, 75, 646 N.E.2d 610, 614 (1995) (“A pattern of strikes is a factor this
       court will consider in evaluating a Batson claim but is not dispositive.”); People v. Davis, 345
       Ill. App. 3d 901, 910, 803 N.E.2d 514, 522 (2004) (“If the absence of a ‘pattern of strikes’ were


                                                    -5-
       enough, in and of itself, to defeat the establishment of a prima facie case of discrimination
       under Batson, this would effectively enable a prosecutor to exercise at least one peremptory
       challenge in a discriminatory manner. Such a possibility is untenable in light of the fact that
       pursuant to Batson and its progeny, the exclusion of just one venireperson on account of race is
       unconstitutional and requires reversal of the conviction.”).
¶ 26        Based on the record before us, it is unclear whether the trial court found defendant
       established a prima facie case of discrimination in regard to Bynum. Although it appears the
       proceedings drifted into the second stage of the Batson analysis, where the State offered a
       race-neutral reason for excusing Bynum (see Davis, 231 Ill. 2d at 362-63, 899 N.E.2d at 246
       (input from the State is not relevant until after a court has concluded the defendant established
       a prima facie case of discrimination)), other than commenting on a lack of a pattern
       demonstrated, the trial court did not address any of the other factors to be considered in
       ascertaining whether a defendant has established a prima facie case of discrimination. Instead
       of proceeding methodically through the required three-step Batson procedure, it appears the
       trial court collapsed the first and second steps into a single inquiry, which was incorrect. See
       Rivera, 221 Ill. 2d at 500-01, 852 N.E.2d at 783 (“[T]his court has repeatedly cautioned that
       the first and second steps in the process ‘should not be collapsed into a single, unitary
       disposition that dilutes the distinctions between a *** prima facie showing of discrimination
       and the *** production of neutral explanations for its peremptory challenges.’ ” (quoting
       People v. Wiley, 156 Ill. 2d 464, 475, 622 N.E.2d 766, 771 (1993))). The court here should
       have completed the first step of the analysis and determined whether or not a prima facie case
       of discrimination had been established before proceeding to the second step. Instead, the
       record indicates the court denied defendant’s Batson challenge as to Bynum based on
       defendant’s failure to establish a pattern of discrimination in the selection of the jury by the
       State, which, as mentioned above, is only one of several factors a court should consider when
       determining whether a defendant has established a prima facie case of discrimination at the
       first stage.

¶ 27                             2. Defendant’s Second Batson Objection
¶ 28       Defendant made his second Batson objection after the State exercised a peremptory
       challenge on Smith. Upon raising this Batson objection, defendant asserted, “[t]he State has
       now exercised peremptories against both blacks, and I would suggest that we now have a
       pattern.” Without seeking input from the State, the trial court referred to the State’s earlier
       attempt to remove Smith for cause and then excused her from the venire, concluding, “I do not
       feel that there has been established a pattern with either Miss Bynum or Miss Smith.”
¶ 29       Based on the record before us, we are unable to determine which, if any, of the Batson steps
       the trial court undertook regarding defendant’s objection to the State’s peremptory challenge
       of Smith. We further note the court’s docket-entry denial of defendant’s motion for a new trial
       does not provide additional evidence to assist this court in making a reasoned determination
       regarding the court’s intentions or rationale for denying either of defendant’s Batson
       objections.
¶ 30       Batson and its progeny have established a clear three-step process that trial courts must
       follow when evaluating a claim of discrimination during jury selection. That procedure was
       not followed here and, as a result, the record is insufficient for us to conduct a meaningful
       review of defendant’s Batson challenges. Thus, we find it necessary to remand to the trial court

                                                   -6-
       for the limited purpose of conducting a full Batson hearing concerning the State’s peremptory
       challenges of Bynum and Smith.

¶ 31                                    C. Batson Hearing on Remand
¶ 32       In an effort to provide guidance to the trial court, we recommend it follow the procedure set
       forth below when it conducts the Batson hearing on remand. We believe a step-by-step,
       methodical approach will aid the circuit court in conducting this and future Batson hearings.
¶ 33       During the first step of the Batson hearing on remand, defendant should be given an
       opportunity to fully address his Batson challenges as to Bynum and Smith. The trial court shall
       then determine, based on the seven factors in Rivera, as discussed above (here, given that the
       prosecutor did not pose questions to either Bynum or Smith during voir dire, a comparative
       juror analysis is unnecessary), whether defendant has succeeded or failed in establishing a
       prima facie case as to both excluded jurors, and it shall make findings in this regard and
       articulate the basis of its findings. Defendant may call his defense counsel along with Bynum
       and Smith to testify at the hearing if he wishes. People v. Andrews, 132 Ill. 2d 451, 462-63, 548
       N.E.2d 1025, 1030 (1989). The trial court may consider, in addition to the evidence and
       argument presented by defendant, any notes it may have made contemporaneous to voir dire or
       recollections of observations it may have made of Bynum and Smith. Id. at 463, 548 N.E.2d at
       1030.
¶ 34       If the trial court finds defendant has failed to establish a prima facie case of purposeful
       discrimination, the Batson hearing is concluded. However, if the court finds a prima facie
       showing has been made, the hearing will proceed to the second step, where the burden shifts to
       the State to come forward with a race-neutral explanation for challenging the juror(s). As
       stated in Batson, in articulating that explanation, “the prosecutor must give a ‘clear and
       reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.”
       Batson, 476 U.S. at 98 n.20 (quoting Texas Department of Community Affairs v. Burdine, 450
       U.S. 248, 258 (1981)). The State may advance not only explanations it made contemporaneous
       to the trial proceedings, but may also advance any further explanations regardless of the
       subsequent passage of time. People v. Hope, 137 Ill. 2d 430, 467, 560 N.E.2d 849, 866 (1990).
       We note that prosecutors are not subject to cross-examination or testifying under oath at
       Batson hearings. People v. Harris, 129 Ill. 2d 123, 174, 544 N.E.2d 357, 379 (1989).
       Thereafter, the defendant should be allowed to respond and present any argument that the
       State’s proffered explanation is pretextual.
¶ 35       Assuming the State has advanced a race-neutral explanation, the Batson hearing then
       proceeds to the third step. During the third step, the trial court must determine whether
       defendant has established purposeful discrimination in light of the parties’ submissions. At this
       point, the court must make credibility findings. In noting the pivotal role of the trial court at
       this stage, the Supreme Court in Snyder v. Louisiana, 552 U.S. 472, 477 (2008), stated as
       follows:
               “Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility
               [citation], and the ‘best evidence [of discriminatory intent] often will be the demeanor
               of the attorney who exercises the challenge,’ [citation]. In addition, race-neutral
               reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness,
               inattention), making the trial court’s firsthand observations of even greater importance.
               In this situation, the trial court must evaluate not only whether the prosecutor’s

                                                   -7-
               demeanor belies a discriminatory intent, but also whether the juror’s demeanor can
               credibly be said to have exhibited the basis for the strike attributed to the juror by the
               prosecutor.”
       We understand that it may be difficult for the court in this case to make such credibility
       determinations and recall its observations of an individual’s demeanor given the considerable
       passage of time. See Davis, 231 Ill. 2d at 368, 899 N.E.2d at 249-50 (“We realize that
       determinations of credibility and demeanor (e.g., facial expressions and the inflection and tone
       of voice when answering questions) may be extremely difficult on remand, which will now be
       more than four years after the trial.”). However, it is important that the trial court do so if
       possible and articulate its credibility findings and conclusions of law in order to allow for
       meaningful appellate review.
¶ 36       Because we remand for a Batson hearing, we withhold disposition of the remaining issues
       on appeal. See Davis, 231 Ill. 2d at 370, 899 N.E.2d at 250 (disposition of remaining issues on
       appeal to be announced after the Batson proceedings on remand). The trial court shall file its
       findings of fact and conclusions of law with the clerk of this court within 60 days of its
       decision, accompanied by the record of the proceedings on remand. Id.; People v. Martinez,
       317 Ill. App. 3d 1040, 1046, 740 N.E.2d 1185, 1190 (2000). We retain jurisdiction to review
       the court’s ruling after remand and to address the remaining issues raised by defendant in this
       appeal. Defendant and the State will be allowed to submit supplemental briefs in this court
       addressing any issues which arise from the Batson hearing on remand. See Davis, 345 Ill. App.
       at 912, 803 N.E.2d at 523.

¶ 37                                      III. CONCLUSION
¶ 38      For the reasons stated, we remand this cause to the circuit court of Vermilion County for
       proceedings consistent with this opinion.

¶ 39      Remanded with directions.




                                                   -8-
