                                                                                  FILED
                               2014 IL App (4th) 121157                      November 25, 2014
                                                                                 Carla Bender
                                     NO. 4-12-1157                            th
                                                                             4 District Appellate
                                                                                  Court, IL
                             IN THE APPELLATE COURT

                                      OF ILLINOIS

                                  FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,                    )     Appeal from
        Plaintiff-Appellee,                             )     Circuit Court of
        v.                                              )     Vermilion County
DAVEY R. SHAW, JR.,                                     )     No. 09CF393
        Defendant-Appellant.                            )
                                                        )     Honorable
                                                        )     Nancy S. Fahey,
                                                        )     Judge Presiding.


               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:

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

                                                 -2-
         [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."

                                  -3-
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


                                               -4-
¶ 11           On November 9, 2012, defendant filed a motion for a new trial, asserting in

relevant part that the trial court erred by (1) denying his request for a Batson hearing and (2)

allowing testimony regarding possession of cannabis being a "fine-only" offense. Following a

November 28, 2012, hearing on defendant's motion, the trial court took the matter under

advisement. In a November 29, 2012, docket entry, the trial court denied defendant's motion for

a new trial.

¶ 12           On December 17, 2012, the trial court sentenced defendant to 5 years'

imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364-

day sentence for resisting or obstructing a peace officer and a 30-day sentence for possession of

cannabis.

¶ 13           This appeal followed.

¶ 14                                      II. ANALYSIS

¶ 15           On appeal, defendant asserts the trial court (1) erred in refusing to conduct a

Batson hearing; (2) erred in admitting evidence and allowing argument that possession of

cannabis was a "fine-only" offense; and (3) violated his constitutional right to confront witnesses

when it heard witness testimony outside his presence.

¶ 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.

                                                -5-
¶ 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.




                                                 -6-
               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)).

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

                                                -7-
¶ 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

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

                                                -8-
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.

                                                 -9-
¶ 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

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-




                                                - 10 -
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).

                                                - 11 -
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 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

                                                - 12 -
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.




                                                - 13 -
