                         Docket No. 98609.


                              IN THE
                      SUPREME COURT
                                 OF
                THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
            MICHAEL RIVERA, Appellant.

                 Opinion filed November 29, 2007.



   JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.



                             OPINION

     Defendant, Michael Rivera, was charged in the circuit court of
Cook County with two counts of first degree murder. Following a jury
trial, defendant was found guilty and was subsequently sentenced to
85 years’ incarceration in the Illinois Department of Corrections.
Defendant appealed, arguing, that (1) the trial court erred when it sua
sponte raised a reverse-Batson (see Batson v. Kentucky, 476 U.S. 79,
90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)) challenge to his use of a
peremptory challenge during jury selection; (2) the procedure resulting
in the imposition of his extended-term sentence violated the rule
announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d
435, 120 S. Ct. 2348 (2000); and (3) the procedure resulting in the
imposition of his extended-term sentence violated his right to a jury
trial as guaranteed by the Illinois constitution. A divided appellate
panel rejected those contentions and affirmed defendant’s conviction
and sentence. 348 Ill. App. 3d 168. We granted the plaintiff’s petition
for leave to appeal. 210 Ill. 2d R. 315.
     When the matter was initially before this court, defendant
advanced multiple arguments, all of which were merely facets of the
same Batson and Apprendi arguments defendant raised below.
Specifically, defendant submitted that (1) trial judges do not have
third-party standing to raise Batson challenges sua sponte; (2) the trial
court’s sua sponte Batson challenge to defense counsel’s peremptory
strike of juror Deloris Gomez was incompatible with the three-step
Batson process; (3) the trial court erred in proceeding to the second
step of the Batson process where no inference of a prima facie case
of discrimination had been established; (4) the trial judge erred in his
ultimate determination that defense counsel discriminated against juror
Gomez; (5) the trial court’s improper denial of defense counsel’s
peremptory strike of juror Gomez was reversible error; (6) the trial
court’s “violation of state statutory and constitutional guarantees to
jury trial” are not amenable to harmless-error review; (7) Apprendi
violations are not subject to harmless-error review; and (8) Apprendi
violations in this case are not harmless beyond a reasonable doubt.
     Upon our initial consideration of this matter, we held that a trial
court has the authority to raise a Batson issue sua sponte, but “it may
do so only when a prima facie case of discrimination is abundantly
clear.” People v. Rivera, 221 Ill. 2d 481, 515 (2006). We stated, when
a court acts sua sponte, “the trial court must make an adequate record
consisting of all relevant facts, factual findings, and articulated bases”
for its finding of a prima facie case. Rivera, 221 Ill. 2d at 515. We
concluded that the record before us did not reveal a prima facie case
of racial discrimination, “if indeed that *** was the basis for the trial
court’s sua sponte action” (Rivera, 221 Ill. 2d at 515), as the State
then argued (see Rivera, 221 Ill. 2d at 511 (“the State asserts that ‘the
trial court’s remarks make it clear that the court’s sua sponte reverse-
Batson challenge was grounded solely on *** race’ ”)). We remanded
this cause to the circuit court for a hearing on the matter of the
existence of a prima facie case of discrimination, urging the trial judge
to include in the record any omitted evidence pertinent to that
question and to articulate proper findings of fact and conclusions of

                                   -2-
law with respect to the threshold question of a prima facie case of
discrimination, specifying, in particular, what kind of discrimination
the judge believed was at issue, i.e., race, gender, or combined race-
gender. Because of our interim disposition, we did not address
defendant’s other issues.
    The hearing in question has since been conducted, the trial judge
having stated on the record that he believed a prima facie case of
gender discrimination was evident when defense counsel sought to
excuse juror Deloris Gomez by peremptory challenge. The matter now
returns to this court for further consideration.
    Pertinent facts prior to remand were fully set forth in our previous
opinion. We reiterate facts as necessary to provide a framework for
our disposition, beginning with the issue that resulted in remand.
    During jury selection, defense counsel questioned juror Deloris
Gomez, a business office supervisor at Cook County Hospital’s out-
patient orthopedic clinic. In the course of that questioning, Gomez
acknowledged that Cook County Hospital is known for the treatment
of gunshot victims and, as a part of her employment at the clinic, she
has contact with patients, “checking them in.” Gomez said her
interaction with the victims of violent crime would not affect her
ability to serve as a juror in the case. Following voir dire, and
apparently in the presence of Gomez and other prospective jurors,
defense counsel announced his intention to use his fourth peremptory
challenge against Gomez, as the following excerpt from the transcript
indicates:
             “MR. DECKER [defense attorney]: Your Honor, with
         thanks, we would ask to excuse Mrs. Gomez.
             THE COURT: I’m going to ask you to remain, Mrs.
         Gomez. I’m going to ask counsel to join me, if the court
         reporter will join me, and the defendant will join me in
         chambers. Excuse me, ladies and gentlemen.”
    In chambers, the court directed defense counsel to “kindly
articulate a basis of why you are excusing Ms. Gomez.” Defense
counsel protested, “The court has done it on its own motion sua
sponte.” The trial court responded: “I will do it. It is the citizen’s right
to sit as a juror, and I will implicate myself sua sponte if I feel



                                    -3-
somebody’s rights are being impinged upon ***.” Defense counsel
then complied with the court’s directive, responding:
              “Mrs. Gomez has a connection to a hospital that on a daily
         basis probably sees more gunshot victims than any other
         hospital in the world ***. Given that fact that she’s in the
         orthopedic section, I think on a daily basis even though she’s
         a supervisor, even though she’s not a rehabilitative nurse, she
         on a daily basis sees those victims who are victims of violent
         crime. For those reasons it constrains me. I know she has
         some kind of Hispanic connection given her name. I’m pulled
         in two different ways. For those reasons I asked that the–.”
At that point in defense counsel’s explanation, the trial court
interrupted counsel, noting that “Mrs. Deloris Gomez appears to be
an African-American.” The court then asked to “hear from” the State
on the issue, the prosecutor having been totally silent and uninvolved
to that juncture. After some initial observations regarding the theory
of the case and the issue for the jury’s consideration, the prosecutor,
apparently sensing the court’s sentiment, stated that the offered reason
for excusing Gomez was insufficient. Defense counsel then noted that
he had previously accepted an African-American woman to sit on the
jury, and the court quickly pointed out that Gomez was the second
“African-American female” that the defense had sought to exclude.
The court stated it was the articulated reason given for the peremptory
challenge of Gomez that was of particular concern. The court
concluded:
              “I’ve heard her answers to the questions. I’ve looked at
         her jury information form, and I’m quite frankly very much
         concerned, Counsel, as to why Mrs. Deloris is being
         excused–Mrs. Deloris Gomez is being excused. She works in
         a clinical division of this hospital. It may have a reputation of
         having many emergency cases, I presume, involving gunshot
         cases, but again she works in a business office, the very first
         line identifying her job.
                                    ***
              I did this sua sponte because I was concerned about the
         right of Mrs. Gomez to be a juror and participate. If the State
         in fact had done this, I certainly would have found they would


                                   -4-
        have established a prima facie case by the very reason–what
        I’m going to do is allow Ms. Gomez–allow her to be seated,
        not excuse her on the basis of your peremptory.
            I feel under these circumstances the reasons given by you,
        Mr. Decker, do not satisfy this Court. As far as I’m
        concerned, it’s more than a prima facie case of discrimination
        against Mrs. Gomez. I’m not going to allow her to be
        excused. She will be seated as a juror over objection.”
    Defense counsel then asked for, and was granted, leave to conduct
further questioning of Gomez, and noted defendant’s objection of
record. After completing that questioning, counsel reiterated his
previous bases for excusing Gomez. In apparent response to his
perception of the court’s concerns, counsel stated he was “not trying
to excuse a juror because of her race.” He then noted that the jury was
comprised predominantly of women, and he offered that he was
“trying to get some impact from *** men in the case.” The circuit
judge responded that he would “override” counsel’s peremptory
challenge and would seat Gomez as a juror as there was no basis for
excusing her for cause.
    Pursuant to our remand, a hearing was held on November 15,
2006. At that hearing, the trial judge, who had since retired, addressed
the bases for his Batson rulings.
    Whether intentionally or unintentionally, the judge’s opening
remarks make clear that he found race a significant factor in explaining
his actions. He commenced with the observation that the murder
victim “was an African-American male” and his mother “was also
African-American.” The judge pointed out: “The Defendant is
Hispanic.” The judge then proceeded to comment on the gender of
jurors, but still noted racial characteristics:
            “The jury was composed of a majority of women; I believe
        after a review of the transcripts, nine women and three men.
        One African-American female was accepted as a juror.
        Another whose race was in fact unknown was excused as well.
        Couldn’t tell by her name what race she belonged to. No one
        had any personal recollection. One female was excused. She
        had been African-American as well. Defendant sought to
        excuse another female African-American, a Mrs. Gomez,


                                  -5-
         peremptorily. She was the third female juror challenged by the
         Defendant.”
    The judge noted that defense counsel’s voir dire examination of
Gomez “essentially went to the nature of her employment and the
exposure she may have had to pictures of victims of violence.” When
counsel indicated he wanted to exercise a peremptory challenge
against Gomez, the judge asked the parties to join him in chambers,
where, according to the judge’s assertions in the November 2006
hearing, he indicated he was “raising a Batson issue because Mrs.
Gomez was in fact the second [sic] woman peremptorily challenged
by the Defendant.” We feel compelled to note, in passing, our
foregoing, comprehensive recitation of events at the original trial, and
our previous finding, which necessitated remand in the first place:
“Because the trial court did not state the basis for its finding of prima
facie discrimination, we do not know whether the trial court believed
the peremptory challenge defendant sought to exercise against Gomez
represented an instance of racial discrimination, or gender
discrimination, or combined race-gender discrimination.” (Emphasis
added.) Rivera, 221 Ill. 2d at 511. Contrary to the judge’s assertions
otherwise, he never stated a basis for his finding. Moreover, to further
clarify, we note, though the judge mentioned, in his remarks at the
November 2006 hearing, defense counsel’s subsequent comments as
a basis for finding a prima facie case of discrimination, those
comments were made in response to the court’s direction to “kindly
articulate a basis of why you are excusing Ms. Gomez.” Again, as we
pointed out in our prior disposition, under these circumstances, “[t]he
existence of a prima facie case is a prerequisite for the court to
demand an explanation.” Rivera, 221 Ill. 2d at 510. “[T]he articulated
reason for a challenge is a matter of ‘concern’ only after a prima facie
case has been established.” (Emphasis in original.) Rivera, 221 Ill. 2d
at 510. Thus, where as here, the trial judge required defense counsel
to explain the basis for exercising his peremptory challenge, the judge
cannot use counsel’s response to his command as a basis for finding
a prima facie case in the first instance; yet that is what the judge
appeared to do at the November 2006 hearing.
    Thus, excluding remarks counsel made in response to, or as a
result of, the judge’s demand for a neutral explanation for the
challenge, the bases articulated by the judge for finding a prima facie

                                  -6-
case of gender discrimination against Gomez consist of the number of
challenges exercised against women, and the “nature of the questions”
counsel initially asked Gomez during voir dire. Although the judge
subsequently mentioned that his observation of the parties played a
part in the second and third steps of his Batson analysis, he made no
such comment with respect to his initial finding of a prima facie case.
He did not mention demeanor as a factor in that regard; nor did he
specify what aspect of defense counsel’s questioning troubled him.
     At the outset of our analysis on this issue, we note the parties now
argue that differing standards of review apply to the question of
whether a prima facie case of discrimination was in evidence when the
trial judge acted sua sponte. As defendant acknowledges, in our prior
opinion, we stated that a manifest weight standard applied, relying
upon People v. Coleman, 155 Ill. 2d 507, 514 (1993). See Rivera,
221 Ill. 2d at 502. However, defendant urges us to adopt a de novo
standard with respect to questions of law inherent in the resolution of
this issue. The State contends that manifest weight is the correct
standard, quoting from this court’s opinion in People v. Mitchell, 152
Ill. 2d 274, 288 (1992) (“[t]he trial court’s [Batson] determination is
a matter of fact, involving an evaluation of credibility”). We observe
that the quote from Mitchell appears to apply to the ultimate Batson
determination, rather than the prima facie determination specifically.
That, however, is not the case with our prior reliance upon Coleman.
     In any event, we reexamine this question in light of our prior
disposition in this matter. When this case was previously before us, we
remanded this cause to allow the trial judge an opportunity to
“articulate proper findings of fact and conclusions of law with respect
to the threshold question of a prima facie case of discrimination.”
Rivera, 221 Ill. 2d at 515-16. Such findings and conclusions are now
essential prerequisites to proper review of sua sponte action on the
part of the trial court, and a court that acts without making an
appropriate record does so at its own peril. Given those requirements,
we believe the appropriate standard of review should comport with
that structure.
     We generally apply a bifurcated standard of review in situations
where a ruling presents a mixed question of law and fact. A trial
court’s ruling on a motion to suppress is a case in point. A trial
court’s findings of fact are not disturbed unless they are against the

                                  -7-
manifest weight of the evidence, but the ultimate legal determination
as to whether a motion to suppress should have been granted, based
on those findings, is a question of law to be reviewed de novo. See
People v. Pitman, 211 Ill. 2d 502, 512 (2004). Similarly, in
administrative review, an agency’s findings of fact are not reversed
unless they are against the manifest weight of the evidence, and
questions of law are reviewed de novo. Girot v. Keith, 212 Ill. 2d 372,
379 (2004). In light of the requirements we have imposed upon trial
courts acting sua sponte in this context, we believe the bifurcated
standard of review is appropriately applied here as well. Thus, when
a trial court raises a Batson issue sua sponte, the court’s findings of
fact, including any specific observations of record bearing upon
demeanor or credibility, will be accorded the deference the manifest
weight standard provides; however, the ultimate legal determination
based upon those findings is a legal determination we will make de
novo.
     We turn to the facts and conclusions presented by the original
record, and the supplemental record compiled on remand, as they bear
upon the existence or nonexistence of a prima facie case of gender
discrimination, which is what the trial judge now claims prompted his
action. In that regard, we see only two factors cited by the judge in
support of his ruling. On remand, the judge stated he believed a prima
facie case of gender discrimination was indicated because of the
number of women peremptorily challenged by defendant (three) and
the “nature of the questions” counsel initially asked Gomez during
voir dire. Although the judge also referred to counsel’s conduct and
statements after the court demanded an explanation of counsel, as we
have held, under the circumstances of this case, comments or conduct
thereafter cannot serve as justification for the court’s intervention in
the first instance. See Rivera, 221 Ill. 2d at 510, 514.
     Taking the relevant factors for evaluating a prima facie case of
alleged racial discrimination (People v. Williams, 173 Ill. 2d 48, 71
(1996)), and modifying accordingly for alleged gender discrimination
(see Rivera, 221 Ill. 2d at 501), we consider the following as pertinent
in this context:
         (1) gender identity between the party exercising the
         peremptory challenge and the excluded venirepersons; (2) a
         pattern of strikes against female venirepersons; (3) a

                                  -8-
        disproportionate use of peremptory challenges against female
        venirepersons; (4) the level of female representation in the
        venire as compared to the jury; (5) the questions and
        statements of the challenging party during voir dire
        examination and while exercising peremptory challenges; (6)
        whether the excluded female venirepersons were a
        heterogeneous group sharing gender as their only common
        characteristic; and (7) the gender of the defendant, victim and
        witnesses. See Rivera, 221 Ill. 2d at 501.
    On remand, the trial judge stated that he believed a prima facie
case of gender discrimination was indicated because of the number of
women peremptorily challenged by defendant (three) and the “nature
of the questions” counsel initially asked Gomez during voir dire. The
judge’s assertions seem to implicate factors two through six set forth
above. Therefore, we will focus on facts bearing upon those factors
in our analysis.
    The record in this case indicates that 7 men and 14 women were
examined for jury service prior to consideration of juror Gomez. Out
of that group, five men and four women were excused for cause.
Defendant used peremptory challenges to excuse one man and two
women. The State exercised a peremptory challenge against one
woman. Of the initial group of 21 venirepersons, one male was
accepted for jury service, and seven women were selected by the
parties. As the trial judge emphatically noted, the challenge defendant
exercised against juror Gomez was the second challenge against an
African-American female, and the third against a female generally.
Counsel had previously objected, unsuccessfully, to the excusal of an
Hispanic female for cause.
    As we indicated in our prior opinion, the mere number of persons
in a protected class who are peremptorily challenged, without more,
will not establish a prima facie case of discrimination. Rivera, 221 Ill.
2d at 512, citing People v. Heard, 187 Ill. 2d 36, 56 (1999). The
number of persons struck takes on meaning only when coupled with
other information, such as the characteristics of the venire overall, the
characteristics of others struck, and the answers of those who were
not struck. Rivera, 221 Ill. 2d at 512, citing United States v. Ochoa-
Vasquez, 428 F.3d 1015, 1044 (11th Cir. 2005). The unchallenged
presence of jurors from the protected class on the seated jury is a

                                  -9-
factor properly considered (Rivera, 221 Ill. 2d at 513, citing People
v. Brown, 172 Ill. 2d 1, 35 (1996)) and tends to weaken the basis for
a prima facie case of discrimination (Rivera, 221 Ill. 2d at 513, citing
Ochoa-Vasquez, 428 F.3d at 1044-45). The party asserting a Batson
claim has the burden of establishing a prima facie case and preserving
the record. Rivera, 221 Ill. 2d at 512. As we held in our prior opinion,
that burden falls upon a trial court when it acts sua sponte. Rivera,
221 Ill. 2d at 512.
    The record in this case simply does not support the action taken
by the trial court. Since women outnumbered men on the venire two
to one, it would not be unusual, from a statistical standpoint, that
defendant had used peremptory challenges against two women and
one man prior to consideration of juror Gomez. Moreover, although
defendant did not question Rosalee Huizenga–the second woman
challenged–he did question Elizabeth Alexander–the first woman
challenged–and he might well have decided to excuse her because her
cousin was a police officer and she was about to get a degree in
criminal justice. As far as juror Gomez is concerned, the fact that she
had frequent contact with gunshot victims seems to us a valid reason
why defense counsel might want to excuse her, and defense counsel’s
questioning reveals nothing of a discriminatory nature. If the trial
judge saw something in counsel’s demeanor or actions that led him to
believe otherwise, he has not seen fit to make those observations a
part of the record. The judge’s reference to the “nature of the
questions” counsel asked suggests that it was the content of the
questions that concerned him. However, the questions asked of
Gomez are a matter of record, and we see nothing in that questioning
which would support a prima facie case of gender discrimination–or,
for that matter, a case of racial discrimination.
    The trial judge’s statements during jury selection, frankly,
suggested that he believed defense counsel was engaged in either
racial discrimination or combined race-gender discrimination.
Otherwise, why would the judge repeatedly emphasize that Gomez
was African-American? If gender were the only consideration, there
would be no reason to mention the juror’s race. It simply is not
relevant. It is interesting to note that the judge still felt obliged to
mention the race of the parties and persons in the venire on remand,


                                 -10-
when he was making a record to support a case for gender discrimination.
     In any event, we find that the record fails to support a prima facie
case of discrimination of any kind. Consequently, the defendant was
improperly denied a peremptory challenge. The question, then, is
whether reversal is required.
     The parties cite legions of cases from other jurisdictions in support
of their respective positions, the State arguing that the denial of the
peremptory challenge is subject to harmless-error analysis, and the
defendant arguing automatic reversal. We believe this issue can be
resolved on the basis of precedents from this court and the United
States Supreme Court, and our analysis will proceed accordingly.
     As we noted in our prior opinion in this matter, the peremptory
challenge has been described by the United States Supreme Court as
“ ‘ “one of the most important of the rights secured to the accused” ’ ”
insofar as it eliminates “ ‘extremes of partiality on both sides.’ ”
Rivera, 221 Ill. 2d at 496, quoting Swain v. Alabama, 380 U.S. 202,
219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835 (1965), quoting
Pointer v. United States, 151 U.S. 396, 408, 38 L. Ed. 208, 214, 14
S. Ct. 410, 414 (1894). In Justice Scalia’s majority opinion in Holland
v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803 (1990),
he discussed the “venerable” history of the peremptory challenge,
stating:
         “[T]hat device occupies ‘an important position in our trial
         procedures,’ Batson, 476 U.S., at 98, and has indeed been
         considered ‘a necessary part of trial by jury,’ Swain v.
         Alabama, 380 U.S., at 219. Peremptory challenges, by
         enabling each side to exclude those jurors it believes will be
         most partial toward the other side, are a means of
         ‘eliminat[ing] extremes of partiality on both sides,’ ibid.,
         thereby ‘assuring the selection of a qualified and unbiased
         jury,’ Batson, supra, at 91 (emphasis added).” Holland, 493
         U.S. at 484, 107 L. Ed. 2d at 918-19, 110 S. Ct. at 809.
In his dissent in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411,
111 S. Ct. 1364 (1991), Justice Scalia described the peremptory
challenge as “a means of winnowing out possible (though not
demonstrable) sympathies and antagonisms on both sides, to the end
that the jury will be the fairest possible.” Powers, 499 U.S. at 425, 113


                                  -11-
L. Ed. 2d at 434-35, 111 S. Ct. at 1378 (Scalia, J., dissenting, joined
by Rehnquist, C.J.). In its 1965 decision in Swain, the Supreme Court
stated, in dictum, that the denial or impairment of the right to a
peremptory challenge is “reversible error without a showing of
prejudice.” Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at
835.
    Although various members of the Supreme Court continue to
acknowledge the importance of peremptory challenges, after Batson,
the status of the peremptory challenge underwent a gradual, but
marked change, culminating in the Court’s decision in United States
v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774
(2000), and it is now clear that the Supreme Court no longer
considers peremptory challenges indispensable to a fair trial or their
erroneous denial a matter necessarily requiring reversal.
    We note, initially, that the passage from Batson, which Justice
Scalia quoted in part in Holland, actually states that peremptory
challenges are “one means of assuring the selection of a qualified and
unbiased jury.” (Emphasis added.) Batson, 476 U.S at 91, 90 L. Ed.
2d at 84, 106 S. Ct. at 1720. The qualification “one” suggests that the
Court does not consider peremptory challenges the only means of
assuring the selection of an impartial tribunal, nor, perhaps, a
necessary means. The Batson Court reiterated that “the Constitution
does not confer a right to peremptory challenges.” Batson, 476 U.S
at 91, 90 L. Ed. 2d at 84, 106 S. Ct. at 1720. In fact, the Court has
long recognized that there is nothing in the Constitution of the United
States which requires the granting of peremptory challenges in
criminal cases. Stilson v. United States, 250 U.S. 583, 586, 63 L. Ed.
1154, 1156, 40 S. Ct. 28, 30 (1919).
    In 2000, the Supreme Court rendered its decision in United States
v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774
(2000), the case that appears to have signaled the end of Swain’s
automatic-reversal rule. In Martinez-Salazar, the Court first
differentiated between the right to an impartial jury and the right to
exercise peremptory challenges:
        “[W]e have long recognized *** that such challenges are
        auxiliary; unlike the right to an impartial jury guaranteed by
        the Sixth Amendment, peremptory challenges are not of


                                 -12-
        federal constitutional dimension.” Martinez-Salazar, 528 U.S.
        at 311, 145 L. Ed. 2d at 800, 120 S. Ct. at 779.
Noting its previous holding in Ross v. Oklahoma, 487 U.S. 81, 101 L.
Ed. 2d 80, 108 S. Ct. 2273 (1988), a case in which a defendant was
forced to exercise a peremptory challenge to cure a trial court’s error
in denying a challenge for cause, the Court stated, “without more, ‘the
loss of a peremptory challenge [does not] constitute[ ] a violation of
the constitutional right to an impartial jury.’ ” Martinez-Salazar, 528
U.S. at 313, 145 L. Ed. 2d at 801, 120 S. Ct. at 780, quoting Ross,
487 U.S. at 88, 101 L. Ed. 2d at 90, 108 S. Ct. at 2278. In Martinez-
Salazar, the Court went on to hold, specifically, that a defendant’s
exercise of peremptory challenges is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove a juror
who should have been excused for cause. Martinez-Salazar, 528 U.S.
at 317, 145 L. Ed. 2d at 804, 120 S. Ct. at 782. However, the most
significant part of the Supreme Court’s opinion for present purposes
is set forth in a footnote. As the briefs in this case indicate, that
footnote has caused courts across the country to reexamine the
automatic-reversal rule of Swain. That footnote states as follows:
            “Relying on language in Swain v. Alabama, 380 U.S. 202
        (1965), as did the Court of Appeals in the decision below,
        Martinez-Salazar urges the Court to adopt a remedy of
        automatic reversal whenever a defendant’s right to a certain
        number of peremptory challenges is substantially impaired.
        Brief for Respondent 29 (a ‘ “denial or impairment of the right
        [to exercise peremptory challenges] is reversible error without
        a showing of prejudice” ’) (quoting Swain, 380 U.S., at 219).
        Because we find no impairment, we do not decide in this case
        what the appropriate remedy for a substantial impairment
        would be. We note, however, that the oft-quoted language in
        Swain was not only unnecessary to the decision in that
        case–because Swain did not address any claim that a defendant
        had been denied a peremptory challenge–but was founded on
        a series of our early cases decided long before the adoption of
        harmless-error review.” Martinez-Salazar, 528 U.S. at 317
        n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4.
Thus, in Martinez-Salazar, the Court clearly took issue with Swain’s
suggestion that the erroneous denial or impairment of the right to

                                 -13-
exercise a peremptory challenge requires automatic reversal,
characterizing that assertion as dictum, and signaling that legal
proposition is no longer good law in the age of “harmless-error
review.”
    We observe that the footnote purports to address only “a remedy
of automatic reversal whenever *** a certain number of peremptory
challenges is substantially impaired.” (Emphasis added.) Martinez-
Salazar, 528 U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at
782 n.4. Obviously, in our situation, the question at hand concerns the
appropriate remedy when a defendant seeks to exercise a peremptory
challenge against a specific juror, and the challenge is disallowed.
However, the distinction appears to be one without a difference
insofar as the “oft-quoted language in Swain,” to which the Court
referred, broadly encompasses any “ ‘ “denial or impairment of the
right [to exercise peremptory challenges].” ’ ” Martinez-Salazar, 528
U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4,
quoting Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at 835.
Moreover, the denial of “a certain number” of peremptory challenges
is not significantly different from the denial of a peremptory challenge
against a specific juror. In the former instance, a party is denied the
opportunity to excuse a juror whom he suspects harbors some bias,
though he cannot prove it; the same is true in the latter instance. Thus,
we believe the observation in the footnote applies to the circumstances
presently before this court.
    Defendant argues that we should not find that the Martinez-
Salazar footnote “impliedly overruled the automatic reversal rule.”
We see nothing “implied” in the language the Supreme Court
employed. The Court undermined the validity of Swain’s automatic-
reversal rule on two fronts: it was dictum and the rule was espoused
before the advent of harmless-error review. We believe the meaning
of the Martinez-Salazar footnote is explicit.
    Of course, harmless-error review would not apply to an error
considered “structural” in nature. However, the error in question
would not seem to qualify as a “structural error.” While the Supreme
Court has recognized a number of “structural errors” requiring
automatic reversal (see Washington v. Recuenco, 548 U.S. __, __ n.2,
165 L. Ed. 2d 466, 474 n.2, 126 S. Ct. 2546, 2551 n.2 (2006)),
including trial before a biased trial judge (Tumey v. Ohio, 273 U.S.

                                  -14-
510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)), the erroneous denial of a
peremptory challenge has not been included in that list. In Recuenco,
the Court noted: “Only in rare cases has this Court held that an error
is structural, and thus requires automatic reversal. In such cases, the
error ‘necessarily render[s] a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.’ ” Recuenco,
548 U.S. at __, 165 L. Ed. 2d at 474, 126 S. Ct. at 2551. As the
Court stated in Recuenco: “ ‘ “[I]f the defendant had counsel and was
tried by an impartial adjudicator, there is a strong presumption that
any other [constitutional] errors that may have occurred are subject to
harmless-error analysis.” ’ ” Recuenco, 548 U.S. at __, 165 L. Ed. 2d
at 474, 126 S. Ct. at 2551, quoting Neder v. United States, 527 U.S.
1, 8, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827, 1833 (1999), quoting
Rose v. Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460, 471, 106 S. Ct.
3101, 3106 (1986). While trial before a biased tribunal would deprive
a defendant of a substantial right and constitute structural error (see
Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)),
there is no evidence that defendant was tried before a biased jury, or
even one biased juror. He does not suggest that Gomez was subject
to excusal for cause. Thus, we do not see the error as one fitting
within the Supreme Court’s framework of “structural errors.” Nor can
a “substantial right” be implicated, as the Supreme Court considers
harmless-error review applicable.
     Defendant argues that harmless-error analysis cannot apply here
because “Gomez’s presence on the jury cannot be qualitatively
assessed for harm.” We disagree. The Supreme Court’s decision in
Neder, and our recent decisions in People v. Thurow, 203 Ill. 2d 352
(2003), and People v. Nitz, 219 Ill. 2d 400 (2006), illustrate the error
in defendant’s position.
     In Neder, the Supreme Court held the omission of an element of
the charged offense from a jury instruction falls into the category of
errors amenable to harmless-error review. The Court observed:
             “Unlike such defects as the complete deprivation of
         counsel or trial before a biased judge, an instruction that omits
         an element of the offense does not necessarily render a
         criminal trial fundamentally unfair or an unreliable vehicle for
         determining guilt or innocence.” (Emphasis in original.)
         Neder, 527 U.S. at 9, 144 L. Ed. 2d at 47, 119 S. Ct. at 1833.

                                  -15-
The Court went on to enunciate the test for determining whether a
constitutional error is harmless: “Is it clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the
error?” Neder, 527 U.S. at 18, 144 L. Ed. 2d at 53, 119 S. Ct. at
1838.
    In People v. Thurow, 203 Ill. 2d 352 (2003), relying upon the
Supreme Court’s opinion in Neder, this court held that Apprendi
violations are subject to harmless-error analysis. In Thurow, as in Nitz,
a judge found an element necessary for sentence enhancement when
a jury should have been charged with that determination. In Thurow,
this court found the Apprendi violation harmless, stating:
         “Given the evidence in support of this element, it is clear
         beyond a reasonable doubt that a properly instructed, rational
         jury would have found defendant guilty of involuntary
         manslaughter against a household member. We therefore
         conclude that the failure to instruct the jury as to this element
         was harmless error.” Thurow, 203 Ill. 2d at 369.
    In Nitz, we were called upon to address the appellate court’s
deviant application of harmless-error analysis to an Apprendi
violation. We noted:
             “In applying that analysis *** the appellate court
         determined that it should not use an objective standard when
         determining whether a jury would have found defendant’s
         crime to be brutal and heinous. 353 Ill. App. 3d at 1002.
         Rather, it concluded that defendant ‘was constitutionally
         entitled to have each element of his guilt decided beyond a
         reasonable doubt by a jury of his choosing.’ (Emphasis in
         original.) 353 Ill. App. 3d at 1003. Thus, the appellate court
         considered ‘what Nitz’s jury, not some hypothetical jury,
         would have decided had it been allowed to decide.’ 353 Ill.
         App. 3d at 1003.” Nitz, 219 Ill. 2d at 407-08.
We rejected the appellate court’s subjective jury analysis, stating,
“Thurow establishes that an appellate court reviewing an Apprendi
error must examine the evidence and determine what a rational jury
would have found. *** [T]he appellate court in this case erred when
it failed to examine the evidence presented at trial and instead



                                  -16-
attempted to divine the thoughts of the 12 jurors who heard that
evidence.” Nitz, 219 Ill. 2d at 413-14.
    Contrary to defendant’s argument otherwise, it may in fact be
possible to qualitatively assess for harm Gomez’s presence on the jury,
by applying the rational juror standard to the evidence adduced against
defendant. If the evidence is so overwhelming that no rational jury–or
juror–would have acquitted defendant of the offense, then Gomez’s
presence on the jury cannot be said to have prejudiced him. Thus, we
consider the evidence adduced in this case.
    The State presented evidence that defendant shot and killed 16-
year-old Marcus Lee, erroneously believing that Lee was a member of
a rival gang. At trial, the State called Susan Shelton, Miguel
Rodriquez, and Charles Oberlin to testify regarding the events of
January 10, 1998, the night of the murder. All three witnesses were
former members of defendant’s gang, the Insane Deuces.
    Susan Shelton testified that she was with the defendant on the
night of the murder. That evening, Shelton attended a party where
defendant and several other members of the Insane Deuces were also
in attendance. At some point in the evening, defendant, Shelton,
Carlos Sanchez (also a gang member), and three others left the party
in Sanchez’s van, with Sanchez driving. While they were driving
around defendant saw two persons walking down the street.
Defendant identified those individuals as members of a rival gang.
Defendant directed Sanchez to stop the van. Defendant then produced
a gun and exited the van, but returned a few seconds later, instructing
Sanchez to chase the two persons they had just seen. Shelton testified
that they never saw those two individuals again that night, but
defendant later noticed another individual on the street, and
announced, “There go [sic] that pussy ass Stone from earlier.” Shelton
knew that the Insane Deuces and the Stones were rival gangs.
    Defendant pointed his gun at Sanchez and ordered him to “stop
the fucking van.” When the van stopped, defendant exited the van, still
holding the gun. Two other occupants followed. Defendant ran
around the side of the van, and out of Shelton’s sight. Shelton then
heard gunshots. Defendant and the others returned to the van, with
defendant still holding the gun. The two other individuals with
defendant were yelling gang slogans until defendant told them to “shut
the fuck up,” advising them that he still had “one bullet left.”

                                 -17-
Defendant was the only person Shelton saw armed with a weapon that
evening. After the shooting, defendant continued to direct the van’s
movements. At one point, defendant ordered Sanchez to stop in an
alley. Defendant unloaded the gun and handed the shell casings to
Shelton. Defendant got out of the van with the gun and later returned
without it. Shelton gave the shell casings to Sanchez, and he
apparently disposed of them. Sanchez then took defendant and three
other individuals back to the party. Shelton testified that she believed
defendant to be the “chief enforcer” of the Insane Deuces, a gang
position below the chief, or “jefe,” and above the foot soldiers.
     Miguel Rodriguez testified that he was a member of the Insane
Deuces on January 9, 1998, and several members of the
gang–including defendant–were at his home that evening. Between
8:30 and 9 p.m. that night, the group was notified that there were
some “Stones” in a park near Rodriguez’s home. The group, including
defendant and a person named “Nelson,” went to the park, where they
saw some individuals playing basketball. Defendant began to “throw”
gang signs, indicating his allegiance to the gang. When those playing
basketball did not respond, the group returned to Rodriguez’s home.
     Back at Rodriguez’s home, defendant referred to the individuals
in the park as “pussies” because they were afraid to fight. Later that
night, Rodriguez observed defendant in possession of two chrome
revolvers. Thereafter, defendant began asking other gang members if
they wanted to go with him to the projects. Defendant and other
members of the gang left Rodriguez’s home between 12:30 and 1 a.m.
When Rodriguez next saw defendant it was approximately 3 a.m. At
that time, defendant announced to Rodriguez that he was a “Stone
killer,” and he indicated he had shot someone that evening. Rodriguez
identified Nelson as a “chief” of the gang, and defendant as the “chief
enforcer.” He explained that the role of the chief enforcer was to
enforce the chief’s decisions.
     Charles Oberlin testified that he was a member of the Insane
Deuces in January of 1998, and he knew defendant as the “chief
enforcer” of that gang. Around 3 or 4 a.m. on January 10, 1998,
Oberlin saw defendant in possession of a chrome gun, and defendant
indicated that he had fired the weapon. Oberlin described his own
position in the gang hierarchy at the time as that of an “old-G,” or
elder. Oberlin explained that his position was above that of “foot

                                 -18-
soldiers,” but below the chief enforcers, the chief and the vice-
president.
    After the State rested, defendant proceeded by stipulation. It was
stipulated that on January 15, 1998, Oberlin had testified before the
grand jury that the last time he saw defendant with a gun was at a
laundromat on Belmont on January 8, 1998. Further, it was stipulated
that Rodriguez had testified before the grand jury that he did not see
an individual named Masina give defendant the handguns, but only
saw defendant with the handguns. Further, it was stipulated that
Rodriquez gave grand jury testimony indicating that when defendant
was explaining how he shot the victim, defendant stated that the
victim grabbed his chest, screamed, fell, and never got back up.
Finally, it was stipulated that Susan Shelton had testified before the
grand jury on January 12, 1998. Shelton testified that, when she was
in the van on the evening in question, she heard a gunshot and she
then put her head down and closed her eyes, whereafter she heard four
more gunshots.
    The defense rested without presenting any witnesses.
    During closing argument, the prosecutor argued, inter alia, that
defendant was the “chief enforcer” of the Insane Deuces and killed
Marcus Lee because he thought Lee was “a Stone.” The jury,
comprised of 11 unobjectionable jurors and Gomez, found defendant
guilty of first degree murder on this evidence.
    At a subsequent hearing, the circuit court denied defendant’s
posttrial motion and proceeded to sentencing. The State argued that
an extended-term sentence was warranted because the murder was
committed in a brutal and heinous manner indicative of wanton cruelty
(see 730 ILCS 5/5–5–3.2(b)(2) (West 1998)) and because defendant
was a leader in the Insane Deuces street gang and the murder was
related to the gang’s activities (see 730 ILCS 5/5–5–3.2(b)(8) (West
1998)). Defense counsel argued that the murder was not committed
in a brutal and heinous manner and, though all the witnesses referred
to defendant as the “chief enforcer” of the gang, “it was not clearly
shown that defendant was a leader, motivator or supervisor” of the
gang. The circuit court determined that an extended-term sentence
was warranted, stating:



                                -19-
             “I further find that [defendant] was indeed a chief enforcer
         of the Insane Deuces gang, *** and a weapon was obtained at
         his direction and a search for rival gang members was then
         had.”
Continuing, the court concluded, “It was a senseless, brutal killing and
I feel that under the circumstances this was a gang incident, gang
motivated at the direction of this defendant.” The circuit court
apparently accepted the State’s contention–now discredited– that the
principles of Apprendi do not apply because the sentencing range for
first degree murder is “twenty to death by lethal injection.” See People
v. Swift, 202 Ill. 2d 378, 392 (2002) (sentencing range for first degree
murder in Illinois is 20 to 60 years’ imprisonment). The circuit court
sentenced defendant to an extended-term sentence of 85 years in the
Illinois Department of Corrections.
     Thereafter, defendant filed a motion to reconsider sentence. At the
hearing on that motion, defense counsel argued that Apprendi requires
a jury to find the factors enabling the imposition of an extended-term
sentence. Counsel also argued that defendant was not in a leadership
position within the gang, as required by the statute, because his place
in the gang hierarchy places him below “the chief” and required him
to carry out the chief’s orders. The circuit court persisted in its prior
ruling and denied the motion for reconsideration.
     We believe any rational trier of fact would have found defendant
guilty of murder on the evidence adduced at trial. Any inconsistencies
in the witnesses’ grand jury testimony were insignificant when
compared to their compelling trial testimony, consistently implicating
defendant as the perpetrator of the murder. The evidence of
defendant’s guilt is overwhelming, and the error in denying
defendant’s peremptory challenge is thus harmless beyond a
reasonable doubt. Since that is the case, we need not decide whether
the erroneous denial of a peremptory challenge is an error of
constitutional dimension in these circumstances.
     Further, applying the analyses of Neder, Nitz and Thurow to
defendant’s Apprendi issue, we find the Apprendi violation harmless
beyond a reasonable doubt. Section 5–5–3.2(b)(8) of the Unified
Code of Corrections (730 ILCS 5/5–5–3.2(b)(8) (West 1998))
authorized an extended-term sentence:


                                  -20-
              “When a defendant is convicted of a felony other than
         conspiracy and the court finds that the felony was committed
         under an agreement with 2 or more other persons to commit
         that offense and the defendant, with respect to the other
         individuals, occupied a position of organizer, supervisor,
         financier, or any other position of management or leadership,
         and the court further finds that the felony committed was
         related to or in furtherance of the criminal activities of an
         organized gang or was motivated by the defendant’s
         leadership in an organized gang[.]” 730 ILCS 5/5–5–3.2(b)(8)
         (West 1998).
Clearly, this murder was gang related and involved the participation
and agreement of defendant and two or more other persons. The
uncontradicted evidence indicates that defendant held a leadership
position in the gang and the murder was motivated by defendant’s
leadership position. The error in not submitting the enhancement issue
to a jury is harmless beyond a reasonable doubt.
     Finally, defendant contends that the imposition of an extended-
term sentence in this case violated his right to a jury trial as
guaranteed by the Illinois constitution. He suggests that this right is
broader than that guaranteed by the federal constitution and such a
violation is not subject to a harmless-error analysis. Defendant’s
argument is interesting insofar as it begins with the relatively new
federal rule of procedure announced in Apprendi–a rule which we had
never recognized as required by our state constitution–and not only
assumes we would find such a requirement in Illinois’ constitution, but
also urges us to hold that its violation is not amenable to harmless-
error analysis.
     In fact, an examination of our decisions over the decades suggests
no such requirement. With the exception of death penalty cases, the
longstanding procedure in Illinois has been for judges to make
sentencing determinations, including the finding of facts necessary to
support the sentences. Multitudes of such cases predate the 1970
Illinois constitution, and we have to assume the framers were aware
of them. Thus, when the defendant cites article I, section 13, of the
Illinois Constitution, wherein it is stated that “[t]he right of trial by
jury as heretofore enjoyed shall remain inviolate” (emphasis added)
(Ill. Const. 1970, art. I, §13), the right of which he speaks was

                                  -21-
apparently not one which included jury participation in the sentencing
phase of noncapital cases.
     This court, in People v. Adkins, 41 Ill. 2d 297 (1968), made it
clear that sentencing in noncapital cases was a procedure distinct from
the adversary proceeding of a jury trial, and with different evidentiary
rules and standards:
             “In Illinois, *** we have long held that the judge in
         determining the character and extent of punishment is not
         limited to considering only information which would be
         admissible under the adversary circumstances of a trial.”
         Adkins, 41 Ill. 2d at 300.
The rules did not change with the advent of extended-term sentencing
in the early 1970s. In People v. La Pointe, 88 Ill. 2d 482 (1981), a
case involving extended-term sentencing, this court quoted the
Supreme Court itself in differentiating between the evidentiary rules
then applicable to trial procedures and sentencing procedures: “ ‘In
addition to the historical basis for different evidentiary rules governing
trial and sentencing procedures there are sound practical reasons for
the distinction.’ ” La Pointe, 88 Ill. 2d at 496, quoting Williams v.
New York, 337 U.S. 241, 246-51, 93 L. Ed. 1337, 1342-44, 69 S. Ct.
1079, 1083-85 (1949). Relevance and reliability were the touchstones
for admissibility (People v. Fern, 189 Ill. 2d 48, 67 (1999)), and the
reasonable doubt standard that emerged from Apprendi was not a part
of noncapital sentencing in this state prior to that decision; nor was
the requirement that the trier of fact make findings pertinent to
sentencing.
     In La Pointe, this court considered the constitutionality of one of
the very enhancement factors argued by the State in this case. In
La Pointe, defendant challenged the constitutionality of section
5–8–1(a)(1) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005–8–1(a)(1)),
which authorized natural life imprisonment when “the court” found a
defendant’s conduct to be “exceptionally brutal or heinous behavior
indicative of wanton cruelty.” La Pointe, 88 Ill. 2d at 499. Defendant
argued that the statute was unconstitutionally vague and therefore
violated due process requirements; he also argued that the felony
sentencing scheme, which offered the prospect of release to every
offender sentenced to a term of imprisonment excepting a small class
of murder defendants, violated equal protection of the law. La Pointe,

                                  -22-
88 Ill. 2d at 499. It likely never occurred to him, or any other
defendants, or the legislature, that a sentencing court could not,
constitutionally, make findings bearing upon sentence enhancement.
The only requirement was that the court advise the defendant, initially,
of the possible sentences he could face, including extended-term
sentences, upon proof of certain aggravating facts.
    In response to Apprendi, the Illinois legislature changed section
1005–8–1(a)(1) to require the “trier of fact” to find an enhancement
factor “beyond a reasonable doubt.” See 730 ILCS 5/5–8–1(a)(1)
(West 2000). The legislature clearly felt no need to make those
changes prior to the Supreme Court’s decision in Apprendi, because
it was taken for granted that the judge was the sentencing fact finder
in noncapital cases prior thereto.
    We have considered defendant’s extensive argument on this issue,
and we reject his contention that the Illinois constitution affords rights
beyond its federal counterpart in this respect. We see no appreciable
difference between the rights guaranteed by the federal and state
constitutions. As we noted recently in People v. Taylor, 221 Ill. 2d
157, 169 (2006):
        “Both our federal and state constitutions preclude a criminal
        felony conviction without the right to a jury trial. Specifically,
        the sixth amendment to the United States Constitution states
        that ‘[i]n all criminal prosecutions, the accused shall enjoy the
        right to a speedy and public trial, by an impartial jury.’ U.S.
        Const., amend. VI. Similarly, our state constitution provides
        that ‘[i]n criminal prosecutions, the accused shall have the
        right *** to have a speedy public trial by an impartial jury of
        the county in which the offense is alleged to have been
        committed.’ Ill. Const. 1970, art. I, §8.”
Although the harmless-error analysis we used in Thurow was based on
United States Supreme Court precedents interpreting the right to a
jury trial guaranteed by the federal constitution, we find nothing in
our own constitution, or our precedents, which would cause us to
interpret the Illinois constitution differently. Therefore, assuming,
arguendo, that the Illinois constitution requires a “trier of fact” to
make findings bearing upon sentence enhancement “beyond a
reasonable doubt,” we conclude that any violation of the right to a


                                  -23-
jury trial guaranteed by the Illinois constitution was harmless for the
same reasons discussed in Thurow.
     For the foregoing reasons, we affirm the judgment of the appellate
court–though not the entirety of its analysis–insofar as that judgment
affirmed the judgment of the circuit court.

                                                            Affirmed.




                                 -24-
