                        Docket No. 105092.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS



THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
           JERMAINE DAVIS, Appellant.

                 Opinion filed November 20, 2008.



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



                            OPINION

    Defendant, Jermaine Davis, was charged with aggravated battery,
armed robbery and first degree murder. The first degree murder
charge was brought under three different theories–intentional murder,
knowing murder (also called strong probability murder), and felony
murder. See 720 ILCS 5/9–1(a)(1), (a)(3) (West 2004). A jury in the
circuit court of Cook County returned a general verdict of guilty
against defendant on the first degree murder charge, as well as a
guilty verdict on the offense of aggravated battery. Defendant was
sentenced to serve 25 years in prison. Defendant appealed, arguing,
inter alia, that (1) the cause must be remanded for a hearing under
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712
(1986), because the trial court improperly collapsed the three-step
Batson process and allowed the State’s peremptory challenge of an
African-American juror without engaging in the third stage of the
analysis, and (2) because the conduct forming the basis of his
aggravated battery was inherent in the murder, the trial court erred in
instructing the jury it could convict him of felony murder predicated
on aggravated battery. The appellate court rejected those claims and
affirmed defendant’s convictions and sentence. No. 1–05–1251
(unpublished order under Supreme Court Rule 23). We allowed
defendant’s petition for leave to appeal. 210 Ill. 2d R. 315.

                              BACKGROUND
    Defendant’s trial began on February 20, 2004, with voir dire.
Defense counsel questioned venire member Robert Hicks in the
course of selecting the jury. That questioning revealed that Hicks was
a retired janitor, who had lived in Chicago since 1970. His hobby was
fishing and he kept himself abreast of current events by watching
channel 9 news. When asked if he could be a fair juror if selected,
Hicks said, “I think so.” Defense counsel followed this up by asking
if Hicks was “comfortable [that he could] be fair.” Hicks responded,
“I am comfortable.” The prosecutor did not ask any questions of
Hicks.
    Voir dire proceeded, and after one additional prospective juror
was questioned, the prosecutor announced that he would exercise a
peremptory challenge to Hicks. At that point, defense counsel
requested a discussion with the court off the record. Upon returning
to the record, the trial court decided to conduct its own inquiry into
whether the State had committed a Batson violation in its challenge
to Hicks. The following proceedings were then had on the record:
             “THE COURT: All right. There has just been–I don’t
         really feel that it has been raised to a Batson type position but,
         State, why don’t you articulate why–and in fairness, being
         overly fair to the Defense and to the court system, could you
         articulate why you don’t want Mr. Hicks on the jury?
             MR. KEATING [Prosecutor]: Judge, yes.
             Judge when asked if he could be fair–and I wrote this
         down, Judge–his response was I think so. In my opinion,
         Judge, he equivocated when the question was asked. Based on

                                   -2-
that Judge, I am uncomfortable. And for that reason, we are
exercising a peremptory. *** Thank you.
    MR. MAX [Defense counsel]: Judge, for the record, we
are making an objection based on the fact that Mr. Hicks–just
so the record is clear–is African American. The defendant is
African-American. We raised the Batson issue while we were
off record, and we believe there is no valid reason for him to
be struck. Other people had said I think so. There has been no
follow up by the State.
    THE COURT: Mr. Jones, did you raise the Batson issue
as an issue formally off record or is Mr. Max assuming things
that you didn’t say?
    MR. JONES [Another defense attorney]: Judge, I don’t –
    THE COURT: That’s easy.
    MR. JONES: I don’t believe I officially–
    THE COURT: What you have to do is have integrity here
rather than bias.
    MR. JONES: I don’t believe I officially raised it off the
record, Judge.
    THE COURT: All right. Don’t misquote what happens off
the record otherwise there is no purpose in being off the
record, Mr. Max. And it wasn’t raised off the record as a
formal type of objection.
    Who is the other African American male that was
excused?
    MR. JONES: That was Mr.–
    THE COURT: These things are easily made accusations
by the Defense. I don’t take anything lightly when someone
is called either prejudiced or racist or anything like that.
    Go ahead.
    MR. MAX: For the record, to make a Batson objection, I
am not calling anyone prejudiced or racist. What I am doing
is protecting an issue for the record where if we don’t object,
that is not a record on appeal, that is waived. I am mandated
to make that record to object.
    THE COURT: You are not mandated to make allegations.

                         -3-
            All right. Go ahead. Who is the other person that you said
        was excused?
            MR. JONES: Andre Honorable, Judge.
            MR. KEATING: That’s correct, Judge. I made my motion
        for cause at that time. I think I made my record at that time.
            THE COURT: It is in there. And if Mr. Max doesn’t want
        to pay attention to it, that’s fine.
            I find that your–first of all, your reasons for excusing Mr.
        Hicks was [sic] race neutral. He said he thinks he could be
        fair. That’s enough for you know, a race neutral reason to use
        a peremptory challenge.
            All right.
            MR. KEATING: Thank you, Judge.
            THE COURT: Go ahead.
            MR. KEATING: Judge, we accept this panel.
            THE COURT: Okay.”
    The trial eventually proceeded to the evidentiary portion where it
was established that a group of men beat Demetrius Thomas
unconscious on October 10, 1999, near a Chicago housing project. A
Chicago Housing Authority police officer responded to a call about
the incident and found Demetrius Thomas lying in a garbage
Dumpster. The victim was taken to a hospital and remained in a coma
for two months before he died of an infection that resulted from the
brain injuries he suffered in the beating.
    Quincy Campbell was a key witness that testified on behalf of the
State. He had a criminal record and was a suspect in the case until he
gave a statement to police. At trial, he stated that he witnessed a
group of men beat the victim. Campbell had difficulty at trial,
however, with names and events, saying that he did not remember any
of the names of the people involved in the beating. But he did
acknowledge at trial that he had given a written statement to police on
January 3, 2000, about the incident. According to Campbell’s written
statement, he knew from the neighborhood four of the five men who
beat the victim. They were Maurice Thomas, Pee Wee (a.k.a. Edward
Durant), Hip Hop, and Kevin. Campbell identified defendant as Hip
Hop at trial.

                                  -4-
    Campbell’s written statement further indicated that during the
encounter, Pee Wee struck the victim with a stick three times.
Campbell described the stick used to beat the victim as a piece of cut
lumber. At one point, the victim got on his feet and ran. But Thomas,
Pee Wee, Kevin and defendant chased him around a building where
the others began beating him again. When the victim fell to the
ground, defendant began striking him with his feet. At one point, Pee
Wee went through the victim’s pockets. While Campbell was
watching the beating, Thomas asked Campbell to act as lookout for
police, but Campbell refused. When the beating ended, defendant
picked up the victim by the collar and pants and tossed him into a
garbage Dumpster. Campbell denied participating in the beating and
denied that the victim’s sister, Samara Sadler, was present.
    Other evidence presented revealed that police conducted a lineup
on January 22, 2000, in which Campbell identified defendant. Later
that day, police confronted defendant with the fact of that
identification. Defendant then gave a written statement to an assistant
State’s Attorney in which defendant admitted his involvement in the
incident. According to that statement, defendant was “hanging out”
in the area when he saw Maurice Thomas bring the victim outside
from the building. The victim broke free of Maurice’s grasp, ran
around the back of the building and entered a hallway on the first
floor. Maurice ran after him, and Maurice and Pee Wee proceeded to
beat the victim. Defendant “kept watch” from about two feet away to
make sure no one saw what was going on or tried to interfere. After
Thomas and Pee Wee finished the beating, the victim was lying face
down and unconscious. Defendant then grabbed him by the back of
his pants and shirt and threw him into a Dumpster.
    Samara Sadler, sister of the victim, testified for the defense. She
observed the victim come out of the building with Campbell and
Maurice Thomas. Campbell and Thomas then began hitting the
victim. She knew both Campbell and Thomas from the neighborhood.
The group ran around the building and Sadler followed. When she got
there, she observed the victim lying on the ground and unconscious.
Two or three persons were around the victim, and she did not know
if one of them was defendant. She knew defendant from the
neighborhood, but testified that she did not see defendant strike the
victim at any time.

                                 -5-
    During its closing argument, the State argued that it was not
necessary that it prove defendant intended to kill the victim, but only
that defendant or one for whom he was accountable combined to do
an unlawful act, such as commit an aggravated battery and that the
victim was killed by one of the parties committing that act. Because
defendant was a part of the aggravated battery, he was legally
responsible for the victim’s death. The State noted that there were
three options for first degree murder, but it only had to prove one. The
State further argued that Durant (Pee Wee) knew there was a strong
probability of death when he hit the victim with a board and that
defendant was accountable. However, even if the jury did not believe
this, defendant was still guilty of murder if he or someone he was
accountable for committed aggravated battery.
    The jury was subsequently instructed on all three theories of first
degree murder. Defendant objected to the instructions at trial on the
basis that they contained “accountability language.” Defendant,
however, did not object at trial to the instructions on the basis that
they improperly informed the jury that it could convict defendant of
felony murder based on aggravated battery. Defendant also did not
object to the submission of a general verdict form. The jury returned
a general verdict form finding defendant guilty of first degree murder,
and defendant was ultimately sentenced to 25 years in prison.
    Defendant filed a posttrial motion, claiming that the trial court
erred in ruling on the Batson issue that arose after the State’s use of
a peremptory challenge to an African American venireman.
Defendant additionally argued that the court erred in giving jury
instructions that informed the jury that it could convict defendant of
felony murder based on aggravated battery. Also, defendant argued
that he was denied the effective assistance of trial counsel when
counsel failed to request a special verdict form. The trial court denied
the motion.
    Defendant appealed, first contending that the cause should be
remanded for a new Batson hearing because the trial court improperly
collapsed the three-step process. Defendant’s second contention was
that the trial court erred in instructing the jury that it could find him
guilty of felony murder predicated on aggravated battery.
    The appellate court first set out the three-step process for a Batson
claim as follows: (1) defendant must make a prima facie showing that

                                  -6-
the prosecutor exercised peremptory challenges on the basis of race;
(2) the burden then shifts to the prosecutor to provide a race-neutral
reason for excluding the juror in question; and (3) the trial court then
weighs the evidence and determines if the defendant proved
purposeful discrimination. See No. 1–05–1251 (unpublished order
under Supreme Court Rule 23). The appellate court then found that
the State’s proffered reason was valid and rejected defendant’s claim
that the cause should be remanded for a Batson hearing. In so doing,
it affirmed the trial court’s finding that the prosecutor’s stated reason
for excluding Hicks was race neutral. The appellate court did not
address whether the trial court failed to consider the third stage of the
Batson analysis. Instead, the appellate court itself looked at jurors
who gave answers similar to venireman Hicks’ answers about
whether they could be fair, and it then determined from its review of
the record that each of these jurors possessed additional
characteristics that might have prompted the State to find them
acceptable; therefore, it concluded that the State’s articulated reasons
were not pretextual. See No. 1–05–1251 (unpublished order under
Supreme Court Rule 23).
     The appellate court next considered defendant’s claim that the
trial court committed reversible error in instructing the jury on felony
murder predicated on aggravated battery where the predicate felony
is inherent in the act of murder itself. See People v. Morgan, 197 Ill.
2d 404, 447 (2001). The appellate court found that even assuming
that the trial court erred in so instructing the jury, any error was
harmless. No. 1–05–1251 (unpublished order under Supreme Court
Rule 23), citing People v. Ruiz, 342 Ill. App. 3d 750, 756 (2003). The
court noted that Illinois law is clear that “ ‘where an indictment
contains several counts arising out of a single transaction, and a
general verdict is returned[,] the effect is that the defendant is guilty
as charged in each count ***.’ ” No. 1–05–1251 (unpublished order
under Supreme Court Rule 23), quoting Morgan, 197 Ill. 2d at 448,
quoting People v. Thompkins, 121 Ill. 2d 401, 455 (1988). Thus, if
defendant is charged with intentional murder, strong probability
murder and felony murder, and the jury returns a general verdict
finding defendant guilty of murder, it raises a presumption that the
jury found that the defendant committed the most serious crime
charged, which is intentional murder. No. 1–05–1251 (unpublished

                                  -7-
order under Supreme Court Rule 23), citing Morgan, 197 Ill. 2d at
448. Any error in instructing the jury on felony murder was therefore
harmless. No. 1–05–1251 (unpublished order under Supreme Court
Rule 23).

                              ANALYSIS
    On appeal to this court, defendant first argues that we should
remand the cause for a Batson hearing because the trial court
improperly collapsed the methodical three-step Batson approach.
Defendant claims that the trial court omitted the first step altogether
and went directly to the second step of asking the State to provide its
reasons for excusing Hicks. According to defendant, the trial court
then found the reason race neutral, but stopped there without
considering the third step, at which it was required to evaluate the
prosecutor’s explanation in light of all the circumstances of the case
and determine if defendant had proven purposeful discrimination.
Defendant contends that the prosecutor’s stated reason for striking
Hicks was pretextual, as it applied equally to jurors who were not
struck. Specifically, defendant now points to answers given by jurors
Roy Hunninghaus, Kimberly Katulka and Peter Pick, and claims that
these jurors equivocated in the same manner as Hicks when asked
whether they could be fair.
    The relevant portions of the record show that Hunninghaus gave
an identical response to Hicks, whereas Katulka and Pick gave
arguably similar responses to those given by Hicks. The prosecutor
asked Hunninghaus if he could be a fair juror and he responded, “I
think so.” The prosecutor did not follow up this answer with any
further questioning. Defense counsel, however, did follow up by
quoting the juror’s answer back to him and asking whether he had
“any hesitation about [his] ability to be fair” to both sides in the case.
Hunninghaus responded, “No, I don’t.”
    The prosecutor asked Katulka whether she would sign a guilty
verdict if the State met its burden to prove defendant guilty beyond
a reasonable doubt, and she answered “Yes.” The prosecutor then
asked her if she could be fair to both sides in the case, and she
responded, “I believe I can.” Defense counsel later asked Katulka
about her service on a jury in another case in 2001 and whether there


                                   -8-
was anything about that case that would affect her ability to be fair in
the present case. Katulka said, “I don’t believe so, no.” Defense
counsel then asked her whether she would have any problem finding
defendant not guilty if, after hearing the evidence, she believed that
the State had not proven its case beyond a reasonable doubt. She
replied, “No.”
    Pick was not asked by counsel whether he could be fair generally
or whether he could be fair to the State in particular. Instead, defense
counsel asked Pick whether he could be fair to defendant. Pick
answered, “Yes, I think so.”

                          I. Batson Procedure
     The United States Supreme Court in Batson set forth a three-step
process for evaluating whether the State’s use of a peremptory
challenge resulted in removal of venirepersons on the basis of race.
First, the defendant must make a prima facie showing that the
prosecutor has exercised peremptory challenges on the basis of race.
Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 88, 106 S. Ct. at 1723;
People v. Williams, 209 Ill. 2d 227, 244 (2004). To determine at the
first step whether racial bias motivated a prosecutor’s decision to
remove a potential juror, a 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.
Batson, 476 U.S. at 93-94, 96-97, 90 L. Ed. 2d at 85-86, 88, 106 S.
Ct. at 1721, 1723. In Johnson v. California, 545 U.S. 162, 170, 162
L. Ed. 2d 129, 139, 125 S. Ct. 2410, 2417 (2005), the Supreme Court
noted that the 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.” See also
Miller-El v. Dretke, 545 U.S. 231, 239, 162 L. Ed. 2d 196, 213, 125
S. Ct. 2317, 2324 (2005) (Miller-El II) (a defendant can “make out a
prima facie case of discriminatory jury selection by ‘the totality of the
relevant facts’ about a prosecutor’s conduct during the defendant’s
own trial”).
     The “ ‘Constitution forbids striking even a single prospective
juror for a discriminatory purpose.’ ” Snyder v. Louisiana, 552 U.S.


                                  -9-
___, ___, 170 L. Ed. 2d 175, 181, 128 S. Ct. 1203, 1208 (2008),
quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.
1994). However, the mere fact of a peremptory challenge of a black
venireperson who is the same race as defendant or the mere number
of black venirepersons peremptorily challenged, without more, will
not establish a prima facie case of discrimination. People v. Heard,
187 Ill. 2d 36, 56 (1999); see also People v. Rivera, 221 Ill. 2d 481,
512 (2006) (Rivera I) (the number of persons struck takes on meaning
only when coupled with other information such as the voir dire
answers of those who were struck compared to the answers of those
who were not struck).
     Courts have held that an important tool in assessing the existence
of a prima facie case is “comparative juror analysis,” which 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.”
See, e.g., Boyd v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006).
     In Snyder, the Supreme Court, in the process of conducting its
third-stage Batson analysis, compared an excluded black venire
member who was the same race as the defendant with a white juror
who was not excluded to determine that the State’s explanation for
the strike was pretextual, and the Court did so even though no
comparison had been made at the trial level. Snyder, 552 U.S. at ___,
170 L. Ed. 2d at 184-85, 128 S. Ct. at 1211-12. Similarly, in Miller-El
II, the Court noted that comparative jury analysis is a powerful tool
in assessing a Batson claim and that if “a prosecutor’s proffered
reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered at
Batson’s third step.” Miller-El II, 545 U.S. at 241, 162 L. Ed. 2d at
214, 125 S. Ct. at 2325.
     We see no reason why a comparative juror analysis would not
also be a relevant factor in the totality of factors that must be
considered in determining whether a prima facie case exists in the
first instance. We caution, however, that neither Snyder nor Miller-El
ruled that comparative juror analysis, standing alone, would
necessarily be sufficient to prove purposeful discrimination. See
People v. Lenix, 44 Cal. 4th, 602, 626, 187 P.3d 946, 963, 80 Cal.

                                 -10-
Rptr. 3d 98, 118 (2008). Rather, comparative juror analysis was an
additional form of evidence considered by the Supreme Court in both
cases. See People v. Lenix, 44 Cal. 4th 602, 626, 187 P.3d 946, 963,
80 Cal. Rptr. 3d 98, 118 (2008). Thus, we believe that comparative
juror analysis is just one factor in the totality of the circumstances that
the court should take into consideration in considering the existence
of a prima facie case.
    In addition to comparative juror analysis, the following factors are
also relevant in evaluating whether a prima facie case exists:
         (1) the racial identity between the party exercising the
         peremptory challenge and the excluded venirepersons; (2) a
         pattern of strikes against African-Americans on the venire; (3)
         a disproportionate use of peremptory challenges against
         African-Americans; (4) the level of African-American
         representation in the venire 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 heterogeneous group sharing race as
         their only common characteristic; and (7) the race of the
         defendant, victim and witnesses. See Rivera I, 221 Ill. 2d at
         501.
     We again emphasize that the trial court looks at the totality of all
the relevant facts and circumstances to determine whether they give
rise to an inference of discriminatory purpose. Rivera I, 221 Ill. 2d at
500; Batson, 476 U.S. at 93-94, 96, 90 L. Ed. 2d at 85-86, 88, 106 S.
Ct. at 1721, 1723. Once a prima facie showing has been made, the
State must provide “ ‘ “a race-neutral basis for striking the juror in
question” ’ ” at the second stage of the Batson process. Snyder, 552
U.S. at ___, 170 L. Ed. 2d at 180-81, 128 S. Ct. at 1207, quoting
Miller-El II, 545 U.S. at 277, 162 L. Ed. 2d at 237, 125 S. Ct. at 2346
(Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.),
quoting Miller-El v. Cockrell, 537 U.S. 322, 328, 154 L. Ed. 2d 931,
945, 123 S. Ct. 1029, 1035 (2003) (Miller-El I). A race-neutral basis
means “an explanation based on something other than the race of the
juror.” Hernandez v. New York, 500 U.S. 352, 360, 114 L. Ed. 2d
395, 406, 111 S. Ct. 1859, 1866 (1991) (plurality op.). Defense
counsel may then rebut the proffered explanation as pretextual.

                                   -11-
Williams, 209 Ill. 2d at 244. Finally, at the third stage, the trial court
must determine whether the defendant has shown purposeful
discrimination in light of the parties’ submissions. Snyder, 552 U.S.
at ___, 170 L. Ed. 2d at 180-81, 128 S. Ct. at 1207, quoting Miller-El
II, 545 U.S. at 277, 162 L. Ed. 2d at 237, 125 S. Ct. at 2346 (Thomas,
J., dissenting, joined by Rehnquist, C.J., and Scalia, J.), quoting
Miller-El I, 537 U.S. at 328-29, 154 L. Ed. 2d at 945, 123 S. Ct. at
1035; see also Williams, 209 Ill. 2d at 244. The ultimate burden of
persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. Rice v. Collins, 546 U.S. 333, 338,
163 L. Ed. 2d 824, 831, 126 S. Ct. 969, 974 (2006).
     Step three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, and the best evidence of discriminatory intent
will often be the demeanor of the attorney who made the peremptory
challenge. Snyder, 552 U.S. at ___, 170 L. Ed. 2d at 181, 128 S. Ct.
at 1208, quoting Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409,
111 S. Ct. at 1869 (plurality op.). Additionally, as is the case here, a
race-neutral reason for a challenge often invokes a juror’s demeanor
(e.g., nervousness, inattention, the way words are emphasized to
express differing meanings), making the trial court’s firsthand
observations of crucial importance. In such situations, the trial 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. Snyder, 552 U.S. at ___, 170 L. Ed. 2d at
181, 128 S. Ct. at 1208. Generally, a trial court’s ultimate conclusion
on a Batson claim will not be overturned unless it is clearly
erroneous; this deferential standard is appropriate because of the trial
court’s pivotal role in the evaluation process. Snyder, 552 U.S. at ___,
170 L. Ed. 2d at 181, 128 S. Ct. at 1207-08. But this court has held
that when the trial court acts sua sponte to conduct a Batson hearing,
a bifurcated standard of review applies: the court’s findings of fact,
including any specific observations of record bearing on demeanor or
credibility, will be accorded deference; however, the ultimate legal
determination based on those findings is one that we make de novo.
People v. Rivera, 227 Ill. 2d 1, 11-12 (2007) (Rivera II).

                 II. Application of Batson Procedure

                                  -12-
    In attempting to apply the above-mentioned principles to the facts
before us, we find that our review is hampered by the inadequacy of
the Batson hearing that was held below and the cause must therefore
be remanded for a Batson hearing. Defendant now attempts to
compare Hicks, the excluded African-American venireman in
question, to jurors Hunninghaus, Katulka and Pick. Yet the race of
these three jurors is not disclosed in the record. One might presume
that they are not African-American–otherwise, the fact that they were
accepted as jurors would render inane defendant’s comparison
argument, as it would be hard to fathom any racial motivation in
striking Hicks if the other jurors who gave arguably equivocal
answers were the same race as Hicks. But, on the other hand, we are
not comfortable with presuming facts not contained in the record, and
defendant has made no representation before this court that the jurors
in question are in fact nonblack. See People v. Andrews, 146 Ill. 2d
413, 429-30 (1992) (this court rejected the State’s suggestion that
defendant should have been required to call the excluded
venirepersons to testify at the Batson hearing to establish their race
where defense counsel had made a record at the original voir dire in
the form of his own statements about the number of strikes used
against black venirepersons); People v. Townsend, 275 Ill. App. 3d
200, 206 (1995) (the court had no basis for making a comparison
between seated jurors and rejected venire members where defendant
failed to make a record of the racial makeup of the seated jurors,
either before or after the Batson objection); People v. Gray, 252 Ill.
App. 3d 362, 372 (1993) (court would not engage in speculation and
conjecture where the defendant established only that two African
Americans were excluded from the jury but failed to preserve the
record as to the race of the jury or the other excluded venire
members). Nor do we know for sure from the record such facts as the
total number of African Americans in the venire compared to the total
number that served on the jury, or the total number of African
Americans that were struck by use of peremptory challenges by the
State.
    Ordinarily, the party asserting a Batson claim has the burden of
proving a prima facie case and preserving the record, and any
ambiguities in the record will be construed against that party. Rivera
I, 221 Ill. 2d at 512; People v. Henderson, 142 Ill. 2d 258, 279-80

                                -13-
(1990). A different approach, however, is taken when a trial court acts
to conduct a Batson hearing sua sponte. In Rivera I, this court held
that a trial court has standing to raise a Batson issue sua sponte in the
appropriate circumstances. Rivera I, 221 Ill. 2d at 504. But Rivera I
further noted that a prima facie case of discrimination “must be
abundantly clear before a trial court acts sua sponte.” Rivera I, 221
Ill. 2d at 505. When a trial court acts sua sponte to conduct a Batson
hearing, it “ ‘must make an adequate record consisting of all relevant
facts, factual findings, and articulated bases’ for its finding of a prima
facie case.” Rivera II, 227 Ill. 2d at 5, quoting Rivera I, 221 Ill. 2d at
515.
     We believe that the present situation resembles Rivera I, where
the trial court raised a Batson problem sua sponte. Here, the trial
court conducted proceedings off the record and we do not know what
defense counsel argued. All we know for certain is that the trial court
began a Batson proceeding by asking the State to supply an
explanation for its challenge to Hicks without a “formal” objection by
defense counsel. It would have been better had the trial court plainly
asked defense counsel, “Do you want to make a Batson objection, yes
or no?” If no, the court should have dropped the matter unless it was
“abundantly clear” that a prima facie case existed. If indeed defense
counsel did want to make an objection, the court should have
proceeded with the Batson hearing by first hearing from defense
counsel as to whether a prima facie case existed. It is clear that the
trial court felt that no Batson motion had been made and that it could
therefore conduct its own unorthodox inquiry sua sponte, to be “fair
to the defense and the court system.” The court then asked the State
to offer a reason for its peremptory challenge to Hicks, which the
State complied with by asserting that Hicks had equivocated in his
answer to whether he could be a fair juror.
     Once the trial court began its inquiry and the State had offered its
reason for the strike, the record shows, for the first time that at least
one of defendant’s attorneys did desire to make a Batson objection.
The trial court at that point, however, became preoccupied with
eliciting from defense counsel an admission that he had in fact not
made a formal Batson objection while off the record. This seems to
have clouded the rest of the proceedings, preventing both sides from
making full arguments on their respective positions. After

                                  -14-
establishing that no Batson objection had been made, the trial court
then drifted into an inquiry into the State’s use of a peremptory
challenge against another African American venireman, Andre
Honorable.1 When the trial court returned the discussion to Hicks, it
simply found that the State’s reason was race neutral, noting that
Hick’s comment, “he thinks he could be fair,” was a race-neutral
reason. The trial court’s assessment that the State’s reason was race
neutral is no doubt true, as a “neutral explanation” means any
“explanation based on something other than the race of the juror.” See
Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866
(plurality op.). The trouble is that the court stopped its analysis there.
It never did reach the third stage of Batson, which requires the court
to consider whether defendant has shown purposeful discrimination
in light of the parties’ submissions. The trial court never considered
defendant’s argument that the reason offered by the State was
pretextual in light of defendant’s argument that other jurors had
equivocated in a similar fashion. Instead, it stopped its analysis upon
being given a race-neutral explanation, ruling that it was “enough.”
     The trial court’s comments in ruling on defendant’s posttrial
motion also do not engender confidence that the court moved beyond
the second step to consider whether the reason proffered by the State
was pretextual and whether the defendant had met his burden of
proving purposeful discrimination. In denying defendant’s posttrial
motion based on Batson, the court simply stated as follows:
“[L]ooking at Batson, again I was there, I find that there was–Batson
to me is an outstanding case and any violation of it is reprehensible,
I found there was no violation of Batson, so that’s my ruling on that.”
     The trial court also did not make any findings with respect to the
credibility of the prosecutor, or with respect to the demeanor of Hicks
and the accepted jurors who allegedly equivocated in their answers.


   1
    The State initially moved to excuse Honorable for cause because he
hesitated before stating that he could not remember if he or a family
member had ever been a victim of a crime, even though he marked “yes”
to that question on his juror questionnaire. The trial court denied the
challenge for cause. The State then used a peremptory challenge to excuse
Honorable. Defendant did not object to that strike and he makes no Batson
argument with respect to Honorable before this court.

                                  -15-
Although it is true that defendant did not specifically name the jurors
in question, it is also true that the trial court did not ask defense
counsel to elaborate or provide any more detail as to his argument on
pretext. Again, the judge had the obligation to make a complete
record for our review in this setting where he was essentially acting
sua sponte. What the record does show is that the trial court collapsed
the three-step Batson procedure into one step that looked only at
whether the State could offer a race-neutral explanation for the strike.
Under the particular circumstances here, we believe that the
appropriate remedy is a remand for a full Batson hearing that begins
with the first stage of the Batson process. We realize that
determinations of credibility and demeanor (e.g., facial expressions
and the inflection and tone of voice when answering questions) may
be extremely difficult on remand, which will now be more than four
years after the trial. Nevertheless, a firsthand observation of demeanor
is likely to be the only thing that can give “sufficient content” to
Hick’s and Hunninghaus’ statements–“I think so”–when asked if they
could be fair jurors. See Snyder, 552 U.S. at ___, 170 L. Ed. 2d at
189, 128 S. Ct. at 1215 (Thomas, J., dissenting, joined by Scalia, J.)
(“a firsthand observation of demeanor is the only thing that could give
sufficient content to Ms. Scott’s ultimate response–‘I think I could’
[citation]–to determine whether the prosecution’s concern about her
willingness to impose the death penalty was well founded”). The trial
court on remand might also have occasion to assess any differences
in the follow-up questions and answers given by the respective jurors
as compared to Hicks on the issue of their fairness as potential jurors.
     Defendant urges that we remand only for a stage three Batson
hearing because the first stage became moot once the trial court asked
the prosecutor to State the reason for his challenge. But this argument
must be rejected. Defendant bases his claim on the rule expressed by
the Supreme Court in Hernandez: “Once a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial
court has ruled on the ultimate question of intentional discrimination,
the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.” (Emphasis added.) Hernandez, 500
U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866 (plurality op.).
This rule does not govern the present situation, of course, because, as
we have already concluded, the trial court never reached the third

                                 -16-
stage of the process and therefore did not rule on the ultimate
question of intentional discrimination. Accordingly, we believe that
the appropriate remedy is a remand for a full Batson hearing, which
begins with stage one and could potentially end there, depending on
whether defendant establishes a prima facie case.
    Finally, we note that the Batson hearing below was conducted
prior to this court’s decisions in Rivera I and II and prior to the
United States Supreme Court’s decisions in Snyder and Miller-El II.
Although these cases do not represent a change in the area of Batson
law, they do spell out some important principles that should help
guide the parties and the court on remand.

                            CONCLUSION
    In light of our ruling that the Batson proceedings below were
inadequate, we remand the cause for a new Batson hearing. That
necessarily means that we do not now reach the remaining pending
issues in this opinion. See, e.g., Rivera I, 221 Ill. 2d at 516; People v.
Wiley, 156 Ill. 2d 464, 477 (1993); People v. Garrett, 139 Ill. 2d 189,
195 (1990). On remand, the circuit court shall articulate proper
findings of fact and conclusions of law and shall file them with the
clerk of this court within 60 days of the issuance of the mandate in
this matter, accompanied by the record of the proceedings on remand.
See Rivera I, 221 Ill. 2d 481. After the Batson proceedings on remand
have been completed, this court will announce its judgment on any
pending issues.

                                     Cause remanded with directions.




                                  -17-
