                             2017 IL App (2d) 140715 

                                  No. 2-14-0715

                            Opinion filed April 27, 2017 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 09-CF-1537
                                       )
FRANKLIN T. BYRD,                      ) Honorable
                                       ) John S. Lowry,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Jorgensen and Spence concurred in the judgment and opinion.

                                            OPINION

¶1     Defendant, Franklin T. Byrd, appeals from the judgment of the circuit court of

Winnebago County sentencing him to an aggregate prison term of 86 years on his convictions of

intentional first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and armed robbery (720

ILCS 5/18-2(a)(4) (West 2008)).       He contends that the trial court abused its discretion in

refusing to seat a potential juror as a remedy for a violation of Batson v. Kentucky, 476 U.S. 79

(1986), and in imposing the sentence.    Because the court did not abuse its discretion in refusing

to seat the juror or in imposing the sentence, we affirm.

¶2                                      I. BACKGROUND
2017 IL App (2d) 140715


¶3        During jury selection, the State exercised             peremptory challenges on three

African-American potential jurors (Nos. 1, 21, and 22). Following the challenges, defendant

requested a hearing pursuant to Batson.

¶4        At the outset of the hearing, in chambers, the State noted that jurors 21 and 22 had not been

excused and were still in the courtroom. The trial court responded that going into the courtroom

to excuse the two jurors would draw unnecessary attention.                Because juror 1 had been

peremptorily challenged earlier that day, the court had already excused juror 1.

¶5        The trial court ruled that defendant did not make a prima facie case of purposeful

discrimination as to either juror 1 or juror 22. As to juror 21, however, the court found that

defendant made a prima facie case.

¶6        The State then offered its race-neutral explanation for challenging juror 21, stating that the

juror’s brother had been arrested for a drug crime and the juror had visited him in jail. The State

maintained that the juror would closely identify with defendant’s sister, who had visited defendant

in jail. The State added that, when it questioned juror 21, she appeared to be defensive, in that she

“had her brows knitted” and “had her arms crossed” in reaction to being asked whether the

criminal justice system had been fair to her brother.

¶7        Before the trial court ruled regarding juror 21, the State commented that “there’s no

remedy [for] a Batson violation.” When the court asked defense counsel if she had any response

to the State’s comment, she responded only that she “[thought] the Court [had] the ultimate

discretion whether or not to allow the State to use a peremptory challenge to ensure someone a fair

trial.”




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¶8     Before ruling on the Batson issue, the trial court gave all of the potential jurors a 15-minute

break. After the jurors returned to the courtroom, the court excused jurors 21 and 22. Defendant

did not object to the court excusing juror 21.

¶9     Upon returning to chambers, the trial court stated that it was rejecting the State’s

race-neutral explanation for challenging juror 21 and found a Batson violation. In doing so, the

court noted that it did not observe juror 21 cross her arms or be antagonistic or hostile toward the

State. The court added that, although juror 21 might not have completely understood the State’s

questions, the court did not interpret that as animus or hostility.

¶ 10   The State then stated that it misspoke when it earlier told the court that there was no

remedy for a Batson violation. The State explained that it had found an Illinois case that stated

that when there is a Batson violation “the proper remedy would be to impanel the juror.” When

the court asked defense counsel to respond, she stated that the State had accepted white jurors

whom she had seen crossing their arms and “[t]hat’s the only other thing [she would] add.”

¶ 11   The trial court then discharged the entire jury pool. Defendant did not object or request

that juror 21 be seated. The court then stated that it had “declared a mistrial without prejudice.”

After ruling on various motions in limine and other matters, the court asked defense counsel if she

had anything else, and she responded no.

¶ 12   The following morning, the trial court reminded the parties that it had discharged the

previous jury pool and declared a mistrial and that a new jury pool was ready. The court then

noted that defendant had just handed it a motion to seat juror 21. In support of the motion,

defense counsel asked that the jury commission be directed to recall juror 21 so that she could be

seated. When asked for any authority for doing so, defense counsel referred to Batson. She

added that the State had misinformed the court that it was not allowed to reinstate juror 21 and



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2017 IL App (2d) 140715


then, only after the court had excused the juror, the State had advised the court that it could seat

her.

¶ 13   The State responded that defendant never objected when the court declared the mistrial.

The State urged that, because defendant had essentially acquiesced in the mistrial, it was too late

for him to object. The State noted that, when the court asked defense counsel if she wanted to say

anything about the appropriate remedies for a Batson violation, she did not respond. The State

added that one of the possible remedies was to discharge the jury pool.

¶ 14   The trial court denied defendant’s motion to seat juror 21. In doing so, the court stated

that, if defendant could provide any authority for seating juror 21, it would reconsider its decision.

The record does not indicate that defendant ever did so.

¶ 15   After the trial court denied the motion to seat juror 21, defendant immediately moved to

dismiss the case, contending that the Batson violation, combined with the State’s

misrepresentation regarding the lack of potential remedies for that violation, resulted in the denial

of his right to have a fair representation of his race on the jury. The trial court denied the motion

to dismiss.

¶ 16   Following a jury trial, defendant was found guilty but mentally ill of intentional

first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)), guilty but mentally ill of felony (armed

robbery) first-degree murder (720 ILCS 5/9-1(a)(3), 18-2(a)(4) (West 2008)), and guilty but

mentally ill of armed robbery involving the discharge of a firearm that caused death (720 ILCS

5/18-2(a)(4) (West 2008)), all arising out of the shooting death of his mother. The jury also found

that, in committing first-degree murder, defendant discharged a firearm that caused death (730

ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008)), the murder was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty (720 ILCS 5/5-8-1(a)(1)(b) (West 2008)), and the



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2017 IL App (2d) 140715


murder was committed in a cold, calculated, premeditated manner pursuant to a preconceived

plan, scheme, or design to take a human life (720 ILCS 5/9-1(b)(11) (West 2008)). The trial court

entered judgment on the intentional-murder and armed-robbery convictions and vacated the

felony-murder conviction.

¶ 17   At sentencing, the court stated that it had considered the trial evidence, the presentence

investigation report, defendant’s history, character, and attitude, the arguments, defendant’s

allocution, the victim-impact statement, the statutory factors, and the circumstances of the offense.

The court noted that it had considered all relevant aggravating and mitigating factors and stated

that it would comment on some of those. In discussing the mitigating factors, the court found,

based on defendant’s demeanor, attitude, sincerity, remorse, and behavior after returning from

treatment with the Department of Human Services, that defendant was on the road to rehabilitation

and was unlikely to reoffend. Accordingly, the court gave weight to that factor. The court

commented that it was very familiar with defendant’s mental-health history and that it gave weight

to defendant’s being intellectually disabled.

¶ 18   Having balanced the mitigating factors with the seriousness of the offense, the trial court

sentenced defendant to 30 years’ imprisonment for intentional first-degree murder, plus the

mandatory 25-year add-on penalty for defendant’s having discharged a firearm causing death (see

730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008)).       The court imposed a mandatory consecutive

sentence for armed robbery of 6 years’ imprisonment plus the mandatory 25-year add-on for the

discharge of a firearm causing death during the armed robbery (see 720 ILCS 5/18-2(a)(4) (West

2008)). The court noted that, although it was authorized to impose an extended-term sentence, as

a matter of discretion, it would not do so. Thus, the aggregate sentence totaled 86 years in prison.




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¶ 19    Defendant filed a motion to reconsider his sentence. In denying that motion, the trial

court reiterated that it had considered and given weight to defendant’s mental illness. Defendant,

in turn, filed a timely notice of appeal.

¶ 20                                        II. ANALYSIS

¶ 21    On appeal, defendant contends that: (1) the trial court abused its discretion in discharging

the first jury pool and refusing to seat juror 21 as a remedy for the Batson violation; (2) the trial

court abused its discretion in entering judgment on the intentional-murder verdict, as opposed to

the felony-murder verdict, because that opened the door to imposing the mandatory 25-year

add-on for the armed-robbery conviction; and (3) the trial court abused its discretion in imposing a

30-year prison sentence for first-degree murder.

¶ 22    We first address the Batson issue.       It is well established that the State’s use of a

peremptory challenge to exclude a potential juror solely because of the juror’s race violates a

defendant’s fourteenth-amendment right to equal protection. People v. Crawford, 2013 IL App

(1st) 100310, ¶ 102 (citing Batson, 476 U.S. at 84). In assessing such a claim, the trial court must

apply a three-step procedure. Crawford, 2013 IL App (1st) 100310, ¶ 102. First, the court must

determine whether the defendant has made a prima facie showing that the State exercised a

peremptory challenge based on race. Crawford, 2013 IL App (1st) 100310, ¶ 102. Second, if

the defendant makes the prima facie showing, the burden shifts to the State to offer a race-neutral

explanation for striking the particular juror.     Crawford, 2013 IL App (1st) 100310, ¶ 102.

Although the State must offer a comprehensible reason, the explanation need not be persuasive or

even plausible, so long as it is not inherently discriminatory. Crawford, 2013 IL App (1st)

100310, ¶ 102. Third, the court must determine whether the defendant carried his burden of

proving purposeful discrimination. Crawford, 2013 IL App (1st) 100310, ¶ 102.



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¶ 23   The trial court has a pivotal role in evaluating a Batson claim, as race-neutral reasons will

often involve an assessment of the prosecutor’s credibility and the juror’s demeanor. Crawford,

2013 IL App (1st) 100310, ¶ 103. Because such determinations are uniquely within a trial court’s

province, a reviewing court must defer to the trial court, absent exceptional circumstances, and

must uphold the trial court’s ruling unless it is clearly erroneous. Crawford, 2013 IL App (1st)

100310, ¶ 103.

¶ 24   In this case, defendant does not contend that the trial court erred in applying the three-step

procedure. Rather, he maintains that, once the trial court found a Batson violation as to juror 21, it

failed to apply the proper remedy.

¶ 25   In Batson, the Supreme Court commented on the possible remedies for the racially

discriminatory use of a peremptory challenge. In light of the variety of jury-selection practices

followed by various state and federal courts, the Court expressed no view on whether, upon a

finding of purposeful discrimination, the trial court should discharge the venire and select a jury

from a new panel not previously associated with the case or disallow the peremptory challenge and

resume selection with the improperly challenged juror reinstated on the venire. Batson, 476 U.S.

at 99 n.24. Thus, the Court recognized two possible remedies for a Batson violation: seating the

juror who was improperly challenged or discharging the venire and starting jury selection anew

with another venire. However, the Court did not state a preference for either remedy or discuss

under what circumstances a particular remedy might be appropriate.

¶ 26   Our research has found no Illinois case that has conclusively discussed the appropriate

remedy for a Batson violation or expressed a preference for either of the remedial alternatives

identified in Batson. However, there are two Illinois cases that briefly mention remedies for a

Batson violation.



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¶ 27    In Hunt v. Harrison, 303 Ill. App. 3d 54 (1999), the court addressed the issue of whether

dismissal of a plaintiff’s case for a violation of Batson was a proper remedy. In holding that it

was not, the court cited Batson. Hunt, 303 Ill. App. 3d at 56 (citing Batson, 476 U.S. at 99 n.24).

More importantly, the court’s review of cases both in and out of Illinois revealed that, where a

Batson violation is found, courts apply one of the two remedies identified in Batson. Hunt, 303

Ill. App. 3d at 56. But see Symposium: Batson at Twenty-Five: Perspectives on the Landmark,

Reflections on Its Legacy, 97 Iowa L. Rev. 1613, 1617-26 (2012) (noting that some state courts

have read Batson to identify the only two possible remedies, while other state courts, interpreting

Batson as setting forth only two examples of possible remedies, have applied alternative

remedies). The Hunt court did not address the issue of which of the two remedies identified in

Batson, if either, is preferred.

¶ 28    In People v. Rivera, 307 Ill. App. 3d 821 (1999), the court held that the defendant’s

peremptory challenge violated Batson. Rivera, 307 Ill. App. 3d at 831-32. In so holding, the

court noted, without expressing any preference for a particular remedy, that the impaneling of the

challenged juror was an appropriate remedy in “[that] case.” Rivera, 307 Ill. App. 3d at 832

(citing Batson, 476 U.S. at 99 n.24).

¶ 29    Although defendant relies on Rivera in contending that the trial court here was required to

seat juror 21, Rivera does not support that contention. Rather, Rivera merely recognized that

seating a juror is one “possible remedy.” Rivera, 307 Ill. App. 3d at 832. The court in Rivera

never suggested that seating a juror is the only remedy. Thus, Rivera does not stand for the

proposition that a court must always remedy a Batson violation by seating the juror.

¶ 30    Because the law recognizes that there are at least two possible remedies, either seating the

juror or discharging the entire venire, depending on the jury-selection practice being followed, it is



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necessarily a matter of discretion as to which remedy should be applied. See State v. Sessions,

342 P.3d 738, 744 (Utah 2014) (Batson remedy is matter of discretion under the circumstances of

the particular case); State v. Nelson, 85 So. 3d 21, 33-34 (La. 2012) (noting that the majority of

courts have delegated the Batson remedy to the discretion of the trial court); see also Koo v.

McBride, 124 F.3d 869, 873 (7th Cir. 1997) (Batson remedy is a matter upon which courts are

accorded significant latitude). An abuse of discretion occurs only when the trial court’s decision

is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it.

People v. Rivera, 2013 IL 112467, ¶ 37. Thus, the issue here is whether, under the particular

circumstances, the trial court abused its discretion in denying defendant the remedy of seating

juror 21. It did not.

¶ 31   The record shows that juror 21 remained with the venire in the courtroom while the trial

court conducted the Batson hearing in chambers. After hearing the State’s explanation for

challenging juror 21, but before ruling on the ultimate issue of whether defendant had proved

purposeful discrimination, the court excused juror 21. Defendant, however, did not object to the

court’s doing so. 1 Nor did defendant request that juror 21 be seated in the event that the court

found a Batson violation. Instead, defendant waited until the following day to move for juror 21

       1
           The State asserts that defendant forfeited appellate review of this issue because he failed

to object when the trial court excused juror 21. Although defendant did not object when the court

excused juror 21, it is arguable whether he forfeited the issue, as he moved to have juror 21 seated

before jury selection began the following morning. Nonetheless, even if defendant forfeited the

issue, it is reviewable under the plain-error doctrine, as discrimination during jury selection raises

a serious question as to the fairness of the proceeding. See People v. Blackwell, 164 Ill. 2d 67,

74-75 (1995).



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to be seated. By that time, however, juror 21 had been excused for more than 12 hours. Thus,

there was a significant risk that she had been exposed to information related to the case or had

discussed the case. That alone was a proper reason for the court to refuse to seat juror 21.

Further, having excused juror 21 and the entire venire without objection, the court had opted to

start jury selection all over with a new venire. Under the circumstances, the court’s refusal to seat

juror 21 was not arbitrary, fanciful, or unreasonable. Thus, the court did not abuse its discretion

in denying defendant’s motion to seat juror 21. 2

¶ 32   Defendant contends that there was no manifest need for the trial court to declare a mistrial

and discharge the venire. That contention misses the mark, however, as manifest necessity

applies only in the context of whether a mistrial implicates double jeopardy.

¶ 33   The well-established rule is that jeopardy does not attach until the entire jury is impaneled

and sworn. People v. Palen, 2016 IL App (4th) 140228, ¶¶ 39-52 (citing Martinez v. Illinois, 572

U.S. __, __, 134 S. Ct. 2070, 2072 (2014)); People v. Dahlberg, 355 Ill. App. 3d 308, 312 (2005).

If jeopardy did not attach, then it is unnecessary to reach the issue of whether manifest necessity

required declaring a mistrial. Palen, 2016 IL App (4th) 140228, ¶ 52. Here, because the jury had

not been impaneled and sworn, and thus jeopardy had not yet attached, the issue of manifest

necessity had not materialized.

¶ 34   We next address the sentencing issues. Defendant contends that the trial court abused its

discretion in entering judgment on the intentional-murder, as opposed to the felony-murder,

conviction. Because the court was obligated to impose judgment on the more serious version of

the offense, it had no discretion to do otherwise.

       2
           Although we recognize that seating an improperly challenged juror is a possible remedy

under Batson, we offer no opinion as to what circumstances would make that remedy appropriate.



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¶ 35   A defendant cannot be convicted of more than one murder arising out of the same physical

act. People v. Pitsonbarger, 142 Ill. 2d 353, 377 (1990). When multiple murder convictions

have been entered for the same act, the less culpable convictions must be vacated. Pitsonbarger,

142 Ill. 2d at 377. When a defendant is charged with intentional, knowing, and felony murder

arising out of the death of one victim, there can be only one murder conviction. Pitsonbarger,

142 Ill. 2d at 377-78. More importantly, because intentional murder involves the most culpable

mental state, the court must enter judgment on the intentional-murder conviction and vacate the

less culpable knowing- and felony-murder convictions. Pitsonbarger, 142 Ill. 2d at 378.

¶ 36   Applying Pitsonbarger here, once the jury returned verdicts on intentional and felony

murder, the trial court was obligated to enter judgment on only the more culpable

intentional-murder conviction and vacate the less serious felony-murder conviction. Because the

court had no discretion to do otherwise, it did not abuse its discretion.

¶ 37   Defendant relies on People v. Cooper, 194 Ill. 2d 419 (2000), in arguing that, although

there are three theories of first-degree murder, it is a single offense, and thus Pitsonbarger does not

control. In Cooper, the issue was whether the defendant, who murdered one victim, could be

retried for felony murder after his conviction of knowing murder was reversed. In holding that a

retrial on a separate theory of first-degree murder was barred by the right against double jeopardy,

the supreme court explained that, regardless of the particular theory, first-degree murder is one

crime for purposes of double jeopardy.         Cooper, 194 Ill. 2d at 428-29.       Accordingly, the

reasoning in Cooper does not impact the rule in Pitsonbarger that a court must enter judgment on

the most serious version of first-degree murder. Thus, Cooper does not support defendant’s

position.




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2017 IL App (2d) 140715


¶ 38      We note that defendant alternatively asserts that his sentence for first-degree murder

should be reduced from 30 years’ to 20 years’ imprisonment. He does so, however, in a single

sentence at the end of his argument. The failure to cite any authority or articulate an argument

constitutes a forfeiture of the issue. See People v. Oglesby, 2016 IL App (1st) 141477, ¶ 205

(citing Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Forfeiture aside, our review of the sentencing

shows that the trial court considered all of the applicable mitigating factors, including defendant’s

mental health, and did not abuse its discretion in arriving at the 30-year prison sentence for murder.

¶ 39                                    III. CONCLUSION

¶ 40      For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for

this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 41      Affirmed.




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