                             No. 2--05--0050
______________________________________________________________________
________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
________

THE PEOPLE OF THE STATE            ) Appeal from the Circuit Court
OF ILLINOIS,                       ) of Kane County.
                                   )
     Plaintiff-Appellee,           )
                                   ) No. 03--CF--1505
v.                                 )
                                   )
FRANCISCO ALVARADO,                ) Honorable
                                   ) Grant S. Wegner,
     Defendant-Appellant.          ) Judge, Presiding.
______________________________________________________________________
________

       JUSTICE O'MALLEY delivered the opinion of the court:

       Following a jury trial in the circuit court of Kane County, defendant, Francisco

Alvarado, appeals his conviction of delivery of cocaine within 1,000 feet of a church (720

ILCS 570/401(d), 407(b)(2) (West 2002)). Defendant contends that, during jury selection,

the State impermissibly used a peremptory challenge to exclude a potential juror on the

basis of her race, in violation of the rule set forth in Batson v. Kentucky, 476 U.S. 79, 90 L.

Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant also contends that there was insufficient

evidence to convict him of cocaine delivery beyond a reasonable doubt. We remand for

completion of the Batson hearing.

                                     I. BACKGROUND
No. 2--05--0050


      On August 14, 2003, defendant was arrested. Before trial, defendant filed a motion

to suppress his statement to police, contending that he had requested an attorney and that

the statement was otherwise involuntary. Following a hearing at which the officers who

attended defendant's interview and defendant testified, the trial court denied defendant's

motion to suppress. The matter proceeded to a jury trial.

      During the voir dire of the venire, the State questioned Norma Franco. Franco

indicated that, about 15 or 16 years ago, her older sister was involved with drugs and

sought help in ultimately overcoming her drug problem. Franco stated that she was not

close to her sister at that time and was not involved in her sister's rehabilitation and

treatment. Franco indicated that her sister had not had contact with the criminal justice

system as a result of her drug use. The State did not ask Franco individually any other

questions regarding her family and her ability to serve on defendant's jury. Following its

questioning of the venire panel, the State used one of its peremptory challenges to exclude

Franco. Defendant objected, and at a side bar, the following colloquy occurred:

             "MR. ZUELKE [Defense Counsel]: I don't know, Judge, I think I would make

      a challenge to that at this time. She is the only--to me appears to be the only

      Mexican, of Mexican descent person we have in this entire venire. Her answers to

      me didn't indicate anything different than any other answers, so I would make a

      challenge to their challenge, your Honor.

             MS. LUND [Assistant State's Attorney]: Judge, if I may. Thank you. The

      Defendant has not shown a prima facie case for Batson. First of all, there is no

      indication she is Hispanic.




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              Second of all, she indicated to a question to Miss Kirch [assistant State's

       Attorney] that she has a sister that was involved with drugs. That would be a major

       concern for State.

              Third, if you notice from her questionnaire, she has four children. They are

       very small. We were concerned about her attention and her time in this matter,

       considering she is young and has four children at home that would make it difficult to

       sit on the case for a day and a half.

              But most importantly the reason the State struck her had to do with issues

       regarding a relative involved in narcotics. Nothing to do with her origins.

              MR. ZUELKE: Miss Quinn [(prospective juror)] has two relatives with drug

       problems and Mr. Malenke [(prospective juror)] has a friend that got 8 years for

       selling drugs in another state.

              MS. LUND: Obviously we're not here to challenge the other people. They

       were kept on for independent reasons.

              THE COURT: Under the circumstances I'm going to deny your request."

The State used other peremptory challenges to strike other potential jurors, but no further

Batson objections were raised.

       Following the completion of voir dire and the selection of the jury, the trial court

revisited the Batson issue over Franco:

              "I know we've been going way beyond the hour and a half, but the Batson

       issue that you raised, I do want to make some additional comments that I didn't at

       the time simply because of the timing.




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                I think we all recognize as it relates to Batson that there is really a three-step

       process in that regard. The first is for defendant to establish a prima facie case of

       purposeful discrimination by showing that the totality of the relevant facts give rise to

       an inference of discriminatory purpose. The defendant must show that he is a

       member of a cognizable racial group being singled out for differential treatment.

                The Defendant must demonstrate the following: That is he [is] a member of a

       cognizable racial group; that the State exercised peremptory challenges to remove

       venire members of the defendant's race; the facts and any relevant circumstance in

       the case raise an inference that the State exercised peremptory challenges to

       remove the prospective jurors based upon race.

                And there are a number of relevant circumstances to consider in that regard:

       Racial identity between the defendant and the excluded juror; pattern of strikes

       against the cognizable group on a disproportionate basis; level of representation of

       the juror compared to the rest of the jurors; questions propounded prior to

       challenging the juror; the race of defendant, victim, and other witnesses.

                And under those circumstances I again indicate that for purposes of this

       record I don't believe the Defendant has made their [sic] prima facie showing." 1

       1
           We note that the trial court's recitation of the rules of law governing a Batson

challenge is not entirely accurate. For example, the trial court would apparently allow a

Batson challenge only where the defendant and the excluded juror share the same race.

The trial court's grasp of the nuances of Batson, however, is not at issue; in any event, the

trial court correctly set forth the three stages required to conduct a Batson hearing. We

note further that, while the trial court's statement of the law should not be accepted as

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Defendant then requested the trial court to preserve all of the juror profiles for the record

and the trial court appeared to agree to do so.

       Following the trial, defendant was found guilty. Defendant's motion for a new trial

was denied and defendant was sentenced to a term of imprisonment of four years.

Defendant timely appeals.

                                       II. ANALYSIS

       On appeal, defendant raises two issues. First, defendant argues that the trial court

did not properly hold a Batson hearing regarding his objection to the State's use of a

peremptory challenge against juror Franco.        Defendant contends that the trial court

improperly collapsed the procedure and erroneously determined that defendant had not

made a prima facie showing of racial discrimination. Alternatively, defendant argues that

the State's reasons for exercising its peremptory challenge against juror Franco were

pretextual, requiring that he receive a new trial. Defendant's second contention on appeal

is that, due to shoddy police work and record keeping, a reasonable doubt exists as to




accurate but only as what the trial court stated when conducting the Batson hearing at

issue here, our statement of the law below is accurate and governs our disposition here.




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No. 2--05--0050


whether he was the individual who sold the cocaine and, therefore, his conviction should be

reversed.

       Defendant first contends that the trial court erred in its evaluation of his objection,

pursuant to Batson, to the State's use of a peremptory challenge against Franco to exclude

her from jury service in this case. According to defendant, Franco was the only Hispanic

person in the venire and, when comparing her responses to voir dire questioning with those

of others whom the State did not seek to exclude, the inference arises that the State struck

Franco because of her race. We first review the principles governing a Batson inquiry

before addressing defendant's arguments in detail.

       Batson articulated a three-step process to evaluate a claim that the State exercised

its peremptory challenges in a discriminatory manner. Batson, 476 U.S. at 96-98, 90 L. Ed.

2d at 87-89, 108 S. Ct. at 1723-24; People v. Williams, 173 Ill. 2d 48, 70 (1996).

       "First, the defendant must establish a prima facie case of purposeful discrimination

       in the selection of the jury. Once the defendant establishes a prima facie case, the

       burden shifts to the State to articulate a race-neutral reason for challenging each of

       the venirepersons in question.       Finally, the trial judge must consider those

       explanations and determine whether the defendant has met his burden of

       establishing purposeful discrimination." Williams, 173 Ill. 2d at 70-71.

       A defendant makes a prima facie showing of discrimination under Batson by

demonstrating that the relevant circumstances in the case raise an inference that the

prosecutor exercised peremptory challenges to remove potential jurors based on their race.

Williams, 173 Ill. 2d at 71. To assist the court in determining whether a prima facie case of




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discrimination in jury selection has been established, the following factors should be

considered:

       "(1) racial identity between the defendant and the excluded venirepersons; (2) a

       pattern of strikes against [a cognizable racial group of] venirepersons; (3) a

       disproportionate use of peremptory challenges against [a cognizable racial group of]

       venirepersons; (4) the level of [the cognizable racial group's] representation in the

       venire as compared to the jury; (5) the prosecutor's questions and statements during

       voir dire examination and while exercising peremptory challenges; (6) whether the

       excluded [venirepersons of a cognizable racial group] were a heterogeneous group

       sharing race as their only common characteristic; and (7) the race of the defendant,

       victim, and witnesses." Williams, 173 Ill. 2d at 71.

These factors, however, are not all-inclusive. People v. Davis, 345 Ill. App. 3d 901, 903

(2004). The trial court's determination on whether the defendant has established a prima

facie case will not be disturbed unless it is against the manifest weight of the evidence.

Williams, 173 Ill. 2d at 71. With these principles in mind, we turn to the circumstances

confronting the trial court here.

       The State questioned the panel, including Franco, during voir dire. When the State

concluded its questioning, the prosecutor said, "Judge, with thanks, the People would

excuse Miss Franco." Defendant made his Batson objection, arguing that Franco was the

only Hispanic person in the venire and that her answers to questioning were not

significantly different from those of other, non-Hispanic venirepersons who were accepted

by the State. The State disagreed, first arguing that defendant had not made a prima facie

case because there was no indication that Franco was Hispanic, and then pointing out that


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Franco had a sister who had been involved with drugs and that she had small children at

home. The court then immediately denied defendant's Batson objection. Later, after the

jury had been selected, the trial court stated that it wished to supplement the record on the

Batson objection and specifically stated that it denied defendant's objection because

defendant had not established a prima facie case of purposeful discrimination.

       Defendant first contends that the trial court erred in the manner in which it held the

Batson hearing. According to defendant, it was unclear as to what stage the hearing was in

or what basis the trial court used to justify its ruling. From this, defendant concludes that

the trial court did not properly hold a Batson hearing, and he requests that the judgment be

reversed and the case remanded for such a hearing. We disagree with defendant's

premise.

       We are cognizant of the exigencies facing a trial court in seating a jury. Here,

defendant raised an objection that the State excluded a prospective juror on the basis of

race. The State disagreed and the trial court ruled. We find, on the record before us, that

the trial court was clearly in the first stage of the three-part Batson inquiry. This is

confirmed because the trial court supplemented the record and explicitly stated that

defendant had not made a prima facie showing of purposeful racial discrimination on the

part of the State. Had the trial court not supplemented the record, we would have had a

more difficult time in determining where in the Batson process the trial court was when it

ruled. This is why our supreme court has stressed the importance of conducting an orderly

and clear hearing when confronted with a Batson issue. See, e.g., People v. Garrett, 139

Ill. 2d 189, 200 (1990) (Batson challenge must be evaluated in methodical manner);

People v. Hope, 137 Ill. 2d 430, 456 (1990), vacated, 501 U.S. 1202, 115 L. Ed. 2d 966,


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No. 2--05--0050


111 S. Ct. 2792 (1991), modified, 147 Ill. 2d 315 (1992) (Batson hearing should proceed

methodically and step-by-step). Nevertheless, based on the record before us, we hold that

the trial court ruled that defendant had not made out a prima facie case of racial

discrimination in the exclusion of Franco and then terminated the Batson hearing.

       Defendant next challenges the propriety of the trial court's determination on whether

defendant made a prima facie case. The State points out that the record is devoid of any

indication of Franco's race. According to the State, this failure in the record must prohibit

us from reviewing the trial court's determination further, effectively resulting in defendant

waiving his claim. (The State supports its argument with a citation to People v. Harris, 129

Ill. 2d 123, 171-72 (1989) (holding that a challenge to the State's utilization of a peremptory

challenge may not be maintained on appeal unless there is evidence in the record

establishing the excluded juror's race).) Contrary to the State's claim, we find there to be

sufficient evidence in the record to evaluate defendant's claim that the trial court's

determination that he did not make a prima facie case was erroneous.

       Here, defense counsel objected to the State's use of a peremptory challenge to

exclude Franco, because she "appeared" to defense counsel to be the only Hispanic

member of the venire. The State disputed whether she was Hispanic. Defense counsel

requested that the juror information cards be preserved in the record and the trial court

agreed to do so. The juror information was not preserved in the trial court. Nevertheless,

we hold that there is sufficient information in the record to support that defendant

demonstrated that Franco was Hispanic.

       First, we note that "Franco" is an Hispanic surname, a fact conceded by the State.

While this is not conclusive, it raises an inference. Second, defense counsel, for whatever


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reason, stated his belief that Franco appeared to him to be of Mexican descent. This fact

also supports that Franco is Hispanic. Third, defendant requested that the juror information

cards be preserved and the trial court agreed. In our opinion, it would be improper to hold

the destruction or loss of the juror information cards against defendant where he had taken

appropriate steps to preserve the record, and the record, through no fault or action of

defendant, was not actually preserved. (Ordinarily, the failure to provide a complete record

on appeal is construed against the appellant (People v. Pertz, 242 Ill. App. 3d 864, 905

(1993)), but where the incomplete record occurs through no fault of the appellant and

fundamentally prejudices his ability to make his argument on appeal, it will not be held

against him (People v. Ramos, 295 Ill. App. 3d 522, 526 (1998)).) We note that the State

does not deny that the juror information cards would have had information regarding each

juror's race and that they would have resolved the issue one way or the other. Defendant

impliedly made that argument at trial by seeking the preservation of the juror information

cards. Based on this reasoning, we conclude that defendant made a sufficient showing that

Franco is Hispanic, for purposes of his argument as to establishing a prima facie case of

racial discrimination.

       This, however, is merely the first step in defendant's case. He has demonstrated

that Franco is Hispanic. We now consider the seven factors regarding the prima facie

showing identified above. The first factor weighs in defendant's favor: he and Franco are

both Hispanic. This factor, while relevant to the prima facie inquiry, is not dispositive.

Williams, 173 Ill. 2d at 72.

       The next factor is whether the State's use of peremptories established a pattern of

strikes against Hispanics. We conclude that it does not. Franco was apparently the only


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Hispanic in the venire; one strike does not establish a pattern. Thus, this factor affords little

weight in the determination of the prima facie inquiry. See Davis, 345 Ill. App. 3d at 909-

10. However, the fact that the State struck the only Hispanic in the venire is nevertheless a

relevant factor supporting a prima facie case. See People v. Jones, 177 Ill. App. 3d 663,

669 (1988).

       Likewise, the next two factors, whether the State disproportionately struck Hispanics

and the level of Hispanic representation in the venire compared to the jury, afford little

weight to the inquiry. It is not particularly meaningful to attempt to discern disproportionality

on the basis of a single peremptory challenge. Further, because Franco was the sole

Hispanic in the venire, the levels of representation in the venire and the jury are

unenlightening.

       The next factor concerns the prosecutor's questions and statements during voir dire.

The attorneys were allowed to do much of the questioning in voir dire. The prosecutor

verbalized nothing on the record to indicate racial animus. This factor weighs against a

finding of purposeful racial discrimination.

       The next factor is whether the excluded jurors shared only race in common. As

Franco constitutes a group of one, this factor is of little weight. Relatedly, however, an

important factor often considered at this point in the context of establishing a prima facie

case of discrimination is whether the excluded juror shared common characteristics with

other, nonminority jurors who were not challenged. See Davis, 345 Ill. App. 3d at 908

(exclusion of juror of same race as defendant and who shared common characteristics with

accepted nonminority jurors raises an inference that the exclusion was due to race). During

voir dire, the State emphasized that Franco's sister had a drug problem and offered this as


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a distinguishing factor from other jurors it had accepted. However, six other venirepersons

also had relatives or friends who were involved with drugs in their pasts, yet they were not

challenged. Juror Gordon had a brother involved with drugs who underwent rehabilitation.

Like Franco, Gordon was not close with his brother and stated he was able to put aside his

brother's situation. Juror Malenke had a friend who sold drugs and who was sentenced to

prison as a result. Malenke admitted that he had known his friend was selling drugs. The

State did not challenge Malenke. Juror Quinn had a niece and a cousin, both of whom she

was very close to, who were involved with drugs beginning 10 to 15 years before the trial.

Quinn revealed that one was still struggling through rehabilitation at the time of trial, yet the

State accepted Quinn without challenge. Juror Moser had a son who was arrested for

possession of cannabis. Juror Condon had been convicted of drunk driving and had been

through mandatory evaluation and counseling as a result. Juror DeTolve participated in a

12-step program and knew a number of people who had serious drug problems. Further,

DeTolve admitted that he had purchased illegal drugs. All three venirepersons were

accepted by the State.        Thus, Franco shared important characteristics with other

venirepersons who were deemed acceptable. This factor weighs strongly in favor of

establishing a prima facie case. See Davis, 345 Ill. App. 3d at 908.

       The final factor, the racial identity of the defendant, victim, and witnesses, is of little

weight here. There was no victim as such, and defendant and most of the witnesses were

Hispanic, but no inference toward or against racial discrimination arises from these facts.

       In sum, therefore, we hold that the trial court erred in determining that defendant did

not establish a prima facie case of racial discrimination in Franco's exclusion. Our

examination of the record and the relevant circumstances demonstrates that defendant was


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Hispanic and yet the State excluded the only Hispanic in the venire, and that this juror

shared characteristics with other, accepted venire members. Based on this review, we hold

that the trial court's determination that defendant failed to make a prima facie showing of

racial discrimination under Batson was against the manifest weight of the evidence.

       The State, for its part, argues that there is no evidence in the record to establish

Franco's race. We have already determined above that there is sufficient evidence to

demonstrate, for the purposes of the prima facie showing, that Franco is Hispanic. First,

her name is, as the State conceded, a common Hispanic surname. Second, defendant

properly and timely attempted to preserve the record via the juror information cards. The

exclusion of the juror information cards from the record was not defendant's fault and

cannot be held against defendant. Ramos, 295 Ill. App. 3d at 526. Moreover, the State

does not dispute that the juror information cards would resolve the issue. Based on this

and contrary to the State's position, we conclude that there is a sufficient record to establish

that Franco is Hispanic.

       The State also argues that, considering the seven factors, defendant failed to make

out a prima facie case of discrimination in the State's utilization of its peremptory

challenges. The State, however, fails to provide any meaningful argument on that point.

Instead, it correctly notes that the factors we identified as having little weight indeed have

little weight in the analysis. The State argues that the racial identity factor cuts against

defendant because the record does not disclose the race of Franco. We need not address

that point further, other than to note that the State's analysis proceeds from an erroneous

starting point. The State wholly ignores whether Franco shared common characteristics

with other, nonminority venirepersons whom the State did not peremptorily challenge.


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       Instead, the State asserts that defense counsel did not raise the seven factors in

making his argument. We disagree. Defense counsel argued that Franco shared a racial

identity with defendant, and noted that other, nonminority jurors had the same

characteristics as Franco, but were not challenged. Thus, to the extent that the State is

suggesting that defendant has waived this argument, we find that the record flatly

contradicts the State's argument.

       Based on this, we reject the State's arguments. Defendant sufficiently demonstrated

that Franco is Hispanic and further sufficiently demonstrated a prima facie case that the

State used its peremptory challenges to exclude Franco on the basis of race. Accordingly,

we must remand the case to allow the State to proceed to step two of the Batson analysis--

to advance a race-neutral explanation as to why it exercised the challenge. Following this,

the trial court will proceed to step three, determining whether the reason is pretextual. See

Davis, 345 Ill. App. 3d at 911 (remedy for erroneous prima facie determination is remand to

allow remainder of Batson hearing to be held). Based on our resolution of this issue, we

need not consider defendant's alternative argument that the trial court erroneously

determined that the State's reasons for striking Franco were not pretextual.



                                    III. CONCLUSION

       Accordingly, we remand this cause to the circuit court of Kane County and direct it to

hold the remaining stages of the Batson hearing. If the circuit court determines that the

peremptory challenge against Franco is not a Batson violation, then defendant's conviction

and sentence shall stand. If, however, the circuit court determines that the peremptory




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challenge against Franco constitutes a Batson violation, then defendant's conviction shall

be vacated and the circuit court shall order a new trial.

       Remanded with directions.

       BOWMAN and GILLERAN JOHNSON, JJ., concur.




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