People v. Rivera

Docket No. 98609.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

MICHAEL RIVERA, Appellant.

Opinion filed May 18, 2006.BModified upon denial of

rehearing June 29, 2006.

JUSTICE KARMEIER delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, McMorrow,

Fitzgerald, Kilbride, and Garman concurred in the judgment

and opinion.

OPINION

The defendant, Michael Rivera, was charged in the circuit

court of Cook County with two counts of first degree murder.

Following a jury trial, the defendant was found guilty and was

subsequently sentenced to 85 years= incarceration in the Illinois

Department of Corrections. Defendant appealed, arguing that

(1) the trial court erred when it sua sponte raised a

reverse-Batson (see Batson v. Kentucky, 476 U.S. 79, 90 L.

Ed. 2d 69, 106 S. Ct. 1712 (1986)) challenge to his use of a

peremptory challenge during jury selection, (2) the procedure

resulting in the imposition of his extended-term sentence

violated the rule announced in Apprendi v. New Jersey, 530

U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and (3)

the procedure resulting in the imposition of his extended-term

sentence violated his right to a jury trial as guaranteed by the

Illinois Constitution. A divided appellate panel rejected those

contentions and affirmed defendant=s conviction and sentence.

348 Ill. App. 3d 168. We granted the plaintiff=s petition for leave

to appeal. 177 Ill. 2d R. 315.

On appeal, defendant advances multiple arguments, all of

which are merely facets of the same Batson and Apprendi

arguments defendant raised below. Specifically, defendant

submits that (1) trial judges do not have third-party standing to

raise Batson challenges sua sponte; (2) the trial court=s sua

sponte Batson challenge to defense counsel=s peremptory

strike of juror Deloris Gomez was incompatible with the three-

step Batson process; (3) the trial court erred in proceeding to

the second step of the Batson process where no inference of a

prima facie case of discrimination had been established; (4) the

trial judge erred in his ultimate determination that defense

counsel discriminated against juror Gomez; (5) the trial court=s

improper denial of defense counsel=s peremptory strike of juror

Gomez was reversible error; (6) the trial court=s Aviolation of

state statutory and constitutional guarantees to jury trial@ are

not amenable to harmless-error review; (7) Apprendi violations

are not subject to harmless-error review; and (8) Apprendi

violations in this case are not harmless beyond a reasonable

doubt. Defendant=s individual contentions will be addressed, as

warranted, in the context of the broader Batson and Apprendi

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issues he has raised. We will set forth only those facts

pertinent to the issues defendant has raised.

BACKGROUND

During jury selection, defense counsel questioned juror

Deloris Gomez, a business office supervisor at Cook County

Hospital=s out-patient orthopedic clinic. In the course of that

questioning, Gomez acknowledged that Cook County Hospital

is known for the treatment of gunshot victims and, as a part of

her employment at the clinic, she has contact with patients,

Achecking them in.@ Gomez said her interaction with the victims

of violent crime would not affect her ability to serve as a juror in

the case. Following voir dire, and apparently in the presence of

Gomez and other prospective jurors, defense counsel

announced his intention to use his fourth peremptory challenge

against Gomez, as the following excerpt from the transcript

indicates:

AMR. DECKER [Defense attorney]: Your Honor, with

thanks, we would ask to excuse Mrs. Gomez.

THE COURT: I=m going to ask you to remain, Mrs.

Gomez. I=m going to ask counsel to join me, if the court

reporter will join me, and the defendant will join me in

chambers. Excuse me, ladies and gentlemen.@

In chambers, the court directed defense counsel to Akindly

articulate a basis of why you are excusing Ms. Gomez.@

Defense counsel protested, AThe court has done it on its own

motion sua sponte.@ The trial court responded: AI will do it. It is

the citizen=s right to sit as a juror, and I will implicate myself sua

sponte if I feel somebody=s rights are being impinged upon ***.@

Defense counsel then complied with the court=s directive,

responding:

AMrs. Gomez has a connection to a hospital that on

a daily basis probably sees more gunshot victims than

any other hospital in the world ***. Given that fact that

she=s in the orthopedic section, I think on a daily basis

even though she=s a supervisor, even though she=s not

a rehabilitative nurse, she on a daily basis sees those

victims who are victims of violent crime. For those

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reasons it constrains me. I know she has some kind of

Hispanic connection given her name. I=m pulled in two

different ways. For those reasons I asked that the B.@

At that point in defense counsel=s explanation, the trial court

interrupted counsel, noting that AMrs. Deloris Gomez appears

to be an African-American.@ The court then asked to Ahear

from@ the State on the issue, the prosecutor having been totally

silent and uninvolved to that juncture. After some initial

observations regarding the theory of the case and the issue for

the jury=s consideration, the prosecutor echoed the court=s

sentiment that the offered cause for excusing Gomez was

insufficient. Defense counsel then noted that he had previously

accepted an African-American woman to sit on the jury, and

the court quickly pointed out that Gomez was the second

African-American woman that the defense had sought to

exclude. The court stated it was the articulated reason given

for the peremptory challenge of Gomez that was of particular

concern. The court concluded:

AI=ve heard her answers to the questions. I=ve looked

at her jury information form, and I=m quite frankly very

much concerned, Counsel, as to why Mrs. Deloris is

being excusedBMrs. Deloris Gomez is being excused.

She works in a clinical division of this hospital. It may

have a reputation of having many emergency cases, I

presume, involving gunshot cases, but again she works

in a business office, the very first line identifying her job.

***

I did this sua sponte because I was concerned about

the right of Mrs. Gomez to be a juror and participate. If

the State in fact had done this, I certainly would have

found they would have established a prima facie case

by the very reasonBwhat I=m going to do is allow Ms.

GomezBallow her to be seated, not excuse her on the

basis of your peremptory.

I feel under these circumstances the reasons given

by you, Mr. Decker, do not satisfy this Court. As far as

I=m concerned, it=s more than a prima facie case of

discrimination against Mrs. Gomez. I=m not going to

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allow her to be excused. She will be seated as a juror

over objection.@

Defense counsel then asked for, and was granted, leave to

conduct further questioning of Gomez, and noted defendant=s

objection of record. Further questioning of Gomez was

conducted by defense counsel in chambers. Gomez again

acknowledged the Agreat number of patients@ who are seen in

Cook County Hospital=s emergency room Aas a result of violent

crimes@; however, Gomez pointed out that the clinic where she

works is a separate building. Defense counsel=s questioning of

Gomez continued:

AMR. DECKER: But the individuals that are seen

there at Fantus Clinic, I know they are not seen in the

emergency room on an emergency room basis; you

don=t have the facilities there. It=s mainly appointments

that people are awaiting and people picking up

medications. I believe there is a pharmacy also, I

believe, there on the first floor?

JUROR GOMEZ: Yes, it is.

MR. DECKER: Certainly some of those victims

areBcertainly some of those patients were victims of gun

violence?

JUROR GOMEZ: Yes, they were.

MR. DECKER: Does that fact set you off against my

client as opposed to if he was charged with something

else, you know, suppose if he was a defendant charged

with theft or possessing a stolen motor vehicle, that=s

our concern?

JUROR GOMEZ: No, it does not. It does not affect

me in that way.

MR. DECKER: Do you still feel you=d be able to fairly

view the evidence and follow the instructions and the

law that his Honor, Judge Fiala, will be giving you?

JUROR GOMEZ: Yes, I do.@

With the conclusion of counsel=s questioning, the trial court

directed Gomez to resume her seat in the jury box.

Subsequently, out of juror Gomez=s presence, the trial court

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inquired of defense counsel whether counsel wished to say

anything further. Counsel responded:

AYes, your Honor. My feeling [sic] are still the same.

I feel that I=m trying to modify the composition of this

panel. I=m not trying to exclude a woman because of her

race, butBstrike thatBnot trying to excuse a juror

because of her race. But also I think I can also factor in

the fact that she would now be out of theBby the fact

that the jury is predominantly women, I=m trying to get

some impact from possibly other men in the case. I just

don=t feel that under these circumstances my client

should be precluded from his reason to exercise a

peremptory challenge.@

Defense counsel asked the trial judge if he had ever been to

Fantus Clinic, and the court advised counsel that the court

could not comment on that. Defense counsel then told the

court: AIt=s wall to wall victims and patients coming in there, and

I could see it=s a disturbing place for me to be there when I=ve

been there.@

The court concluded:

AI had the opportunity to question Deloris Gomez

who I find is a very intelligent lady. I considered her

statements very carefully, her testimony very carefully,

and I again feel that she shall sit as a juror. I shall not

excuse her, and I will override your peremptory

challenge as to Ms. Gomez, and I find no basis for

cause. So Mrs. Gomez shall sit as a juror.@

In view of the court=s ruling as to Gomez, defense counsel

asked to excuse Aas [defendant=s] fourth peremptory[,] Mr.

Kurich.@ Inexplicably, the court responded as to that

peremptory challenge, AWith reluctance I will allow it.@

When the evidentiary portion of defendant=s trial

commenced, the State presented evidence establishing that

defendant shot and killed 16-year-old Marcus Lee, erroneously

believing that Lee was a member of a rival gang. Defendant

does not challenge the sufficiency of the evidence supporting

his murder conviction, and he raises, as additional error, only

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an Apprendi issue; therefore, we set forth only the trial

evidence pertinent to that issue.

At trial, the State called Susan Shelton, Miguel Rodriquez,

and Charles Oberlin to testify regarding the events of January

10, 1998, the night of the murder. All three witnesses were

former members of defendant=s gang, the Insane Deuces.

Susan Shelton testified that she was with the defendant on

the night of the murder. That evening, Shelton attended a party

where defendant and several other members of the Insane

Deuces were also in attendance. At some point in the evening,

defendant, Shelton, Carlos Sanchez (also a gang member),

and three others left the party in Sanchez=s van, with Sanchez

driving. While they were driving around defendant saw two

persons walking down the street. Defendant identified those

individuals as members of a rival gang. Defendant directed

Sanchez to stop the van. Defendant then produced a gun and

exited the van, but returned a few seconds later, instructing

Sanchez to chase the two persons they had just seen. Shelton

testified that they never saw those two individuals again that

night, but defendant later noticed another individual on the

street, and announced, AThere go [sic] that pussy ass Stone

from earlier.@ Shelton knew that the Insane Deuces and the

Stones were rival gangs.

Defendant pointed his gun at Sanchez and ordered him to

Astop the fucking van.@ When the van stopped, defendant

exited the van, still holding the gun. Two other occupants

followed. Defendant ran around the side of the van, and out of

Shelton=s sight. Shelton then heard gunshots. Defendant and

the others returned to the van, with defendant still holding the

gun. The two other individuals with defendant were yelling

gang slogans until defendant told them to Ashut the fuck up,@

advising them that he still had Aone bullet left.@ Defendant was

the only person Shelton saw armed with a weapon that

evening. After the shooting, defendant continued to direct the

van=s movements. At one point, defendant ordered the van to

stop in an alley. Defendant unloaded the gun and handed the

shell casings to Shelton. Defendant got out of the van with the

gun and later returned without it. Shelton gave the shell

casings to Sanchez, and he apparently disposed of them.

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Sanchez then took defendant and three other individuals back

to the party. Shelton testified that she believed defendant to be

the Achief enforcer@ of the Insane Deuces, a gang position

below the chief, or Ajefa,@ and above the foot soldiers.

Miguel Rodriguez testified that he was a member of the

Insane Deuces on January 9, 1998, and several members of

the gangBincluding defendantBwere at his home that evening.

Between 8:30 and 9 p.m. that day, the group was notified that

there were some AStones@ in a park near Rodriguez=s home.

The group, including defendant and a person named ANelson,@

went to the park, where they saw some individuals playing

basketball. Defendant began to Athrow@ gang signs, indicating

his allegiance to the gang. When those playing basketball did

not respond, the group returned to Rodriguez=s home.

Back at Rodriguez=s home, defendant referred to the

individuals in the park as Apussies@ because they were afraid to

fight. Later that night, Rodriguez observed defendant in

possession of two chrome revolvers. Thereafter, defendant

began asking other gang members if they wanted to go with

him to the projects. Defendant and other members of the gang

left Rodriguez=s home between 12:30 and 1 a.m. When

Rodriguez next saw defendant it was approximately 3 a.m. At

that time, defendant announced to Rodriguez that he was a

AStone killer,@ and he indicated he had shot someone that

evening. Rodriguez identified Nelson as a Achief@ of the gang,

and defendant as the Achief enforcer.@ He explained that the

role of the chief enforcer was to enforce the chief=s decisions.

Charles Oberlin testified that he was a member of the

Insane Deuces in January of 1998, and he knew defendant as

the Achief enforcer@ of that gang. Around 3 or 4 a.m. on

January 10, 1998, Oberlin saw defendant in possession of a

chrome gun, and defendant indicated that he had fired the

weapon. Oberlin described his own position in the gang

hierarchy at the time as that of an Aold-G,@ or elder. Oberlin

explained that his position was above that of Afoot soldiers,@ but

below the chief enforcers, the chief and the vice-president.

During closing argument, the prosecutor argued that

defendant was the Achief enforcer@ of the Insane Deuces and

killed Marcus Lee because he thought Lee was Aa Stone.@ The

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jury found defendant guilty of first degree murder. Juror Gomez

served as the foreperson of the jury.

At a subsequent hearing, the circuit court denied

defendant=s posttrial motion and proceeded to sentencing. The

State argued that an extended-term sentence was warranted

because the murder was committed in a brutal and heinous

manner indicative of wanton cruelty (see 730 ILCS

5/5B5B3.2(b)(2) (West 2000)) and defendant was a leader in

the Insane Deuces street gang and the murder was related to

the gang=s activities (see 730 ILCS 5/5B5B3.2(b)(8) (West

2000)). Defense counsel argued that the murder was not

committed in a brutal and heinous manner and, though all the

witnesses referred to defendant as the Achief enforcer@ of the

gang, Ait was not clearly shown that defendant was a leader,

motivator or supervisor@ of the gang. The circuit court

determined that an extended-term sentence was warranted,

stating:

AI further find that [defendant] was indeed a chief

enforcer of the Insane Deuces gang, *** and a weapon

was obtained at his direction and a search for rival gang

members was then had.@

Continuing, the court concluded, AIt was a senseless, brutal

killing and I feel that under the circumstances this was a gang

incident, gang motivated at the direction of this defendant.@ The

circuit court apparently accepted the State=s contentionBnow

discreditedB that the principles of Apprendi do not apply

because the sentencing range for first degree murder is

Atwenty to death by lethal injection.@ See People v. Swift, 202

Ill. 2d 378, 392 (2002) (sentencing range for first degree

murder in Illinois is 20 to 60 years= imprisonment). The circuit

court sentenced defendant to an extended-term sentence of 85

years in the Illinois Department of Corrections.

Thereafter, defendant filed a motion to reconsider sentence.

At the hearing on that motion, defense counsel argued that

Apprendi requires a jury to find the factors enabling the

imposition of an extended-term sentence. Counsel also argued

that defendant was not in a leadership position within the gang,

as required by the statute, because his place in the gang

hierarchy places him below Athe chief@ and required him to

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carry out the chief=s orders. The circuit court persisted in its

prior ruling and denied the motion for reconsideration.

Defendant appealed.

A divided appellate panel affirmed the judgment of the

circuit court. The court was united in holding that a Atrial court

has standing to act on behalf of a juror subject to discriminatory

jury selection practices.@ 348 Ill. App. 3d at 176. The appellate

court cautioned that the trial court has a right to raise Batson

objections sua sponte, but it has no corresponding duty to do

so. 348 Ill. App. 3d at 176.

Relying upon this court=s opinion in People v. Hudson, 157

Ill. 2d 401 (1993), the appellate majority found it unnecessary

to Aconsider whether combined race-gender discrimination can

be used to establish a prima facie case under Batson.@ 348 Ill.

App. 3d at 177. The majority cited this court=s opinion in

Hudson for the general proposition that Aonce the trial court

rules on the ultimate question of discrimination the question of

whether a prima facie case had been established is moot,@ and

thus the majority rejected the dissent=s argument that the

Amatter should be remanded for a hearing on whether a prima

facie case existed.@ 348 Ill. App. 3d at 177. The appellate

majority observed, Abecause the trial court=s determination [on

the prima facie issue] is based on its own observations, the first

stage of the Batson inquiry will necessarily collapse.@ 348 Ill.

App. 3d at 178. The majority recognized that Aallowing a trial

court to sua sponte raise a Batson issue creates the potential

for abuse@; however, the court majority rejected the dissent=s

call for the trial court to make a record and Aarticulate the basis

for the perceived Batson violation@ as Aa meaningless rhetorical

exercise@ and Amindless adherence to the three-step analysis

of Batson.@ 348 Ill. App. 3d at 178. The appellate majority then

noted that Agreat deference@ is accorded the trial court=s

ultimate determination on review (348 Ill. App. 3d at 178, citing

People v. Harris, 206 Ill. 2d 1, 17 (2002)) and concluded that

the trial court, Aweigh[ing] the credibility of defense counsel=s

explanation@ for defendant=s peremptory challenge, Acould

rationally find a motive to discriminate against African-

Americans, women, or both groups simultaneously.@ 348 Ill.

App. 3d at 178-79.

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Justice Gallagher, specially concurring, acknowledged that

Ait is arguable that the excusal did not constitute a pattern of

strikes against African-Americans, since defense counsel also

excused a white male and a white female@; however, he

believed there was at least Aan inference of purposeful

discrimination.@ (Emphasis in original.) 348 Ill. App. 3d at 182

(Gallagher, J., specially concurring). Justice Gallagher stated,

A[I]t is inferable that the court believed that a prima facie case

was established when defense counsel excluded a second

African-American.@ The justice concluded, AWhether one

agrees or disagrees is not the point. The point is that step one

of the Batson process was followed.@ 348 Ill. App. 3d at 182

(Gallagher, J., specially concurring).

Presiding Justice Frossard, dissenting, disagreed, arguing

that the trial court improperly Acollapsed what ought to be a

three-step procedure into an undifferentiated review of the jury

selection process.@ 348 Ill. App. 3d at 183 (O=Mara Frossard,

P.J., dissenting). Presiding Justice O=Mara Frossard noted that

the record in this case fails to reflect that the trial court

examined relevant factors bearing upon the establishment of a

prima facie case of discrimination. 348 Ill. App. 3d at 183

(O=Mara Frossard, P.J., dissenting). Presiding Justice O=Mara

Frossard argued that AHudson is not determinative in the

factual context of this case, where a trial judge sua sponte

raised a reverse-Batson violation and bypassed any

determination of a prima facie case by requesting race-neutral

explanations from defense counsel for his peremptory

challenge.@ 348 Ill. App. 3d at 185 (O=Mara Frossard, P.J.,

dissenting). The dissent observed that the Atrial judge=s failure

to make a record of the prima facie case regarding this

uncommon sua sponte reverse-Batson challenge makes

proper review of the Batson ruling impossible.@ 348 Ill. App. 3d

at 185 (O=Mara Frossard, P.J., dissenting).

Presiding Justice O=Mara Frossard also pointed out that the

majority failed to address defendant=s argument that Batson is

not applicable to combined race-gender discrimination,

suggesting that the majority=s resort to our opinion in Hudson

did not obviate the need to determine whether the trial court

ultimately based its rejection of defendant=s peremptory

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challenge on its perception of combined race-gender

discrimination. 348 Ill. App. 3d at 186 (O=Mara Frossard, P.J.,

dissenting). The dissent correctly observes that this court has

held the Afocus of Batson is on the exclusion of members of a

single identifiable group, not of different groups considered

together@ (348 Ill. App. 3d at 186 (O=Mara Frossard, P.J.,

dissenting), citing People v. Harris, 164 Ill. 2d 322, 344 (1994)),

and an appellate panel has actually held that Batson does not

apply Ato alleged combined race-gender discrimination.@ 348 Ill.

App. 3d at 186 (O=Mara Frossard, P.J., dissenting), citing

People v. Washington, 257 Ill. App. 3d 26, 34 (1993). We note

in passing that this court mentioned the appellate court=s

disposition in Washington in the course of our opinion in Harris,

citing the appellate court=s holding as an analogous proposition

lending support to our own decision, Adeclin[ing] *** to expand

the Batson rule to embrace the simultaneous consideration of

different racial or ethnic groups.@ See Harris, 164 Ill. 2d at 344.

Presiding Justice O=Mara Frossard concluded:

A[T]he trial court=s failure to articulate the

circumstances that demonstrate a prima facie case of

purposeful discrimination leaves unanswered the

question of whether the court=s finding a Batson

violation was based on combined race-gender

discrimination. The trial judge, by collapsing the Batson

stages and failing to make findings of fact to clarify the

record regarding the relevant circumstances

demonstrating a prima facie case of purposeful

discrimination, has made proper review of this

race-gender issue impossible.@ 348 Ill. App. 3d at 186

(O=Mara Frossard, P.J., dissenting).

Citing the procedure this court sanctioned in People v. Garrett,

139 Ill. 2d 189, 194 (1990), Presiding Justice O=Mara Frossard

would have retained jurisdiction and remanded Afor a three-

step Batson hearing on the present record and any additional

record the trial court or parties decide to make.@ 348 Ill. App. 3d

at 187 (O=Mara Frossard, P.J., dissenting). If the circuit court

then found a Batson violation, Presiding Justice O=Mara

Frossard would have required the circuit court to clarify the

nature of the violation, i.e., race, gender, or combined race-

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gender discrimination. 348 Ill. App. 3d at 187 (O=Mara

Frossard, P.J., dissenting).

Unlike the Batson issue, there was no separate opinion

written with respect to defendant=s Apprendi issue. The

appellate court held that an Apprendi violation had occurred

because the judgeBrather than the juryBfound the facts

necessary to extend the sentencing range applicable to

defendant. 348 Ill. App. 3d at 179-80. However, relying upon

this court=s decisions in Swift and People v. Thurow, 203 Ill. 2d

352, 363 (2003), the appellate court determined that Aan

Apprendi violation may be subject to a plain-error or harmless-

error analysis@ (348 Ill. App. 3d at 180) and ultimately

concluded, based on the uncontested evidence of defendant=s

position in the gang hierarchy, that the Apprendi violation was

harmless error. 348 Ill. App. 3d at 181. Finally, the court

rejected defendant=s contention that the Illinois Constitution

affords greater protection than its federal counterpart,

concluding:

A[W]e find nothing in defendant=s discussion of the history of

criminal defendants= right to a jury trial in Illinois that

compels us to break lockstep and conclude that the

harmless-error analysis of Thurow is impermissible under

the Illinois Constitution.@ 348 Ill. App. 3d at 181.

ANALYSIS

We begin our analysis with a review of the function of

peremptory challenges in our judicial system and of relevant

principles articulated by the United States Supreme Court in

Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69,106 S. Ct.

1712 (1986), and other pertinent cases.

In Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S.

Ct. 824 (1965), the Supreme Court stated that the peremptory

challenge is A >one of the most important of the rights secured

to the accused= @ in our criminal justice system because the

challenge eliminates Aextremes of partiality on both sides@ and

assures the parties that the case will be decided on the basis

of evidence placed before the jurors. Swain, 380 U.S. at 219,

13 L. Ed. 2d at 772, 85 S. Ct. at 835, quoting Pointer v. United

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States, 151 U.S. 396, 408, 38 L. Ed. 208, 214, 14 S. Ct. 410,

414 (1894). See also People v. Daniels, 172 Ill. 2d 154, 165

(1996) (relying upon the foregoing proposition).

In Batson, the Supreme Court again acknowledged the

important role peremptory challenges occupy in our trial

procedures and held, as a constitutional matter, that

peremptory challenges may not be used to exclude potential

jurors based solely on race. Batson, 476 U.S. at 98-99, 90 L.

Ed. 2d at 89, 106 S. Ct. at 1724. The Court, in Batson, held

that a prosecutor cannot utilize peremptory challenges to

excuse potential jurors solely on the basis of their race. Batson,

476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719. In

Batson, the defendant and the potential juror in question

shared the same racial characteristics.

Subsequently, in Powers v. Ohio, 499 U.S. 400, 402, 113 L.

Ed. 2d 411, 419, 111 S. Ct. 1364, 1366 (1991), the Court held

that a defendant in a criminal trial has standing to challenge the

State=s use of peremptory challenges to exclude prospective

jurors on account of their race irrespective of whether the

defendant and the excluded jurors share the same racial

characteristics. In so holding, the Court determined that a

litigant may raise a claim on behalf of a third party if the litigant

can demonstrate that he has suffered a concrete injury, that he

has a close relation to the third party, and there exists some

hindrance to the third party=s ability to protect its own interests.

Powers, 499 U.S. at 410-11, 113 L. Ed. 2d at 425, 111 S. Ct. at

1370-71. The Court found that jurors have rights under its

Batson jurisprudence, stating, although A[a]n individual juror

does not have a right to sit on any particular petit jury, *** he or

she does possess the right not to be excluded from one on

account of race.@ Powers, 499 U.S. at 409, 113 L. Ed. 2d at

424, 111 S. Ct. at 1370. Speaking of discriminatory jury-

selection practices, the Court stated: AThe overt wrong, often

apparent to the entire jury panel, casts doubt over the

obligation of the parties, the jury, and indeed the court to

adhere to the law throughout the trial of the cause.@ (Emphasis

added.) Powers, 499 U.S. at 412, 113 L. Ed. 2d at 426, 111 S.

Ct. at 1371. The Court concluded that the defendant was a

proper party to raise a violation of a juror=s rights under Batson.

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Two justices of the Court were not of the belief that jurors

actually possess rights in the jury-selection process which are

independent of the rights of the parties. See Powers, 499 U.S.

at 417-31, 113 L. Ed. 2d at 429-39, 111 S. Ct. at 1374-82

(Scalia, J., dissenting, joined by Rehnquist, C.J.). In dissent,

Justice Scalia wrote:

ATo affirm that the Equal Protection Clause applies

to strikes of individual jurors is effectively to abolish the

peremptory challenge. *** Not only is it implausible that

such a permanent and universal feature of our jury-trial

system is unconstitutional, but it is unlikely that its

elimination would be desirable. The peremptory

challenge system has endured so long because it has

unquestionable advantages. As we described in

Holland, 493 U.S. at 484, it is a means of winnowing out

possible (though not demonstrable) sympathies and

antagonisms on both sides, to the end that the jury will

be the fairest possible. In a criminal-law system in which

a single biased juror can prevent a deserved conviction

or a deserved acquittal, the importance of this device

should not be minimized.@ Powers, 499 U.S. at 425, 113

L. Ed. 2d at 434-35, 111 S. Ct. at 1378 (Scalia, J.,

dissenting, joined by Rehnquist, C.J.).

Subsequently, the Court again focused on the equal

protection rights of excluded jurors in its decision in Georgia v.

McCollum, 505 U.S. 42, 120 L. Ed. 2d 33, 112 S. Ct. 2348

(1992). In McCollum, the Court held that the constitution

prohibits not only the prosecution, but also a criminal

defendant, from engaging in purposeful racial discrimination in

the exercise of peremptory challenges. McCullom, 505 U.S. at

59, 120 L. Ed. 2d at 51, 112 S. Ct. at 2359. In so holding, the

Court recognized the State=s standing to attack the defendant=s

use of peremptory challenges on racial grounds, observing

that, A[a]s the representative of all its citizens, the State is the

logical and proper party to assert the invasion of the

constitutional rights of the excluded jurors in a criminal trial.@

McCollum, 505 U.S. at 56, 120 L. Ed. 2d at 49, 112 S. Ct. at

2357.

-15-

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed.

2d 89, 114 S. Ct. 1419 (1994), the Supreme Court again

extended the reasoning, prohibitions, and procedures of

Batson, this time to peremptory strikes based on gender.

Reminiscent of the analysis employed in Powers and

McCullom, the Court in J.E.B. stated: ADiscrimination in jury

selection, whether based on race or on gender, causes harm to

the litigants, the community, and the individual jurors who are

wrongfully excluded from participation in the judicial process.@

J.E.B., 511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct. at

1427. The Court pointedly observed that the A[d]iscriminatory

use of peremptory challenges may create the impression that

the judicial system has acquiesced in suppressing full

participation by one gender.@ J.E.B., 511 U.S. at 140, 128 L.

Ed. 2d at 104, 114 S. Ct. at 1427.

Five justices wrote or subscribed to separate opinons in

J.E.B., either concurring and expressing concerns, or

dissenting outright. Justice O=Connor, concurring in the

judgment, expressed her concerns over the proliferation of

ABatson minihearings@ in the state and federal trial courts, and

over the further erosion of the role of the peremptory challenge,

which she acknowledged to be a valuable practice that Ahelps

produce fair and impartial juries.@ J.E.B., 511 U.S. at 147, 128

L. Ed. 2d at 108, 114 S. Ct. at 1431 (O=Connor, J., concurring).

Justice Kennedy, who also concurred in the judgment,

expressed this perplexing cautionary concern: AWe do not

prohibit racial and gender bias in jury selection only to

encourage it in jury deliberations. Once seated, a juror should

not give free rein to some racial or gender bias of his or her

own.@ J.E.B., 511 U.S. at 153, 128 L. Ed. 2d at 112, 114 S. Ct.

at 1434 (Kennedy, J., concurring). Justice ScaliaBwith whom

Chief Justice Rehnquist and Justice Thomas joined in

dissentBexpressed his view that the Batson principle is

Atheoretically boundless@ (J.E.B., 511 U.S. at 161, 128 L. Ed.

2d at 117, 114 S. Ct. at 1438 (Scalia, J., dissenting, joined by

Rehnquist, C.J., and Thomas, J.)), he reiterated his criticism of

the Auniquely expansive third-party standing analysis of

Powers@ (J.E.B., 511 U.S. at 158-59, 128 L. Ed. 2d at 115-16,

114 S. Ct. at 1437 (Scalia, J., dissenting, joined by Rehnquist,

-16-

C.J., and Thomas, J.)), and he offered the following analysis of

the equal protection issue:

AThe core of the Court=s reasoning is that

peremptory challenges on the basis of any group

characteristic subject to heightened scrutiny are

inconsistent with the guarantee of the Equal Protection

Clause. That conclusion can be reached only by

focusing unrealistically upon individual exercises of the

peremptory challenge, and ignoring the totality of the

practice. Since all groups are subject to the peremptory

challenge (and will be made the object of it, depending

upon the nature of the particular case) it is hard to see

how any group is denied equal protection.@ J.E.B., 511

U.S. at 159, 128 L. Ed. 2d at 116, 114 S. Ct. at 1437

(Scalia, J., dissenting, joined by Rehnquist, C.J., and

Thomas, J.).

Suffice it to say that the expansion of the Batson principle, and

the correlative, creeping circumscription of peremptory

challenges, has not proceeded without misgivings and dissent

among the justices of the Supreme Court.

We turn now to the procedure the Court established to

effectuate the Batson principle. In Batson, the Supreme Court

established a three-step process for evaluating alleged

discrimination in jury selection. The Court held that the party

objecting to the exercise of a peremptory challenge is first

required to establish a prima facie case of purposeful

discrimination Aby showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.@ See

Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at

1721. If the objector demonstrates a prima facie case, the

burden then shifts to the other party to explain his challenge by

articulating a nondiscriminatory, Aneutral@ explanation related to

the particular case to be tried. Batson, 476 U.S. at 97-98, 90 L.

Ed. 2d at 88, 106 S. Ct. at 1723-24. Finally, the trial court

considers the reasons provided for the peremptory strike. As

part of that process, the objector may argue that the reasons

given are pretextual. The trial court then makes a final

determination as to whether the objector has established

-17-

purposeful discrimination. Batson, 476 U.S. at 98, 90 L. Ed. 2d

at 88- 89, 106 S. Ct. at 1724.

In the course of implementing the principles and procedures

of Batson, this court has repeatedly cautioned that the first and

second steps in the process Ashould 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.@ People

v. Wiley, 156 Ill. 2d 464, 475 (1993); see also People v.

Jackson, 145 Ill. 2d 43, 98 (1991) (warning trial courts not to

omit the first step in the Batson analysis altogether), vacated

on other grounds, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32

(1992); People v. Garrett,139 Ill. 2d 189, 201 (1990). Accord

Purkett v. Elem, 514 U.S. 765, 767-68, 131 L. Ed. 2d 834, 839,

115 S. Ct. 1769, 1770-71 (1995).

In Batson, the Supreme Court stated that courts should

consider Aall relevant circumstances@ in deciding whether a

party has made the requisite showing of a prima facie case.

Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at

1723. This court has held, in determining whether the objector

has demonstrated purposeful discrimination against African-

Americans at the prima facie stage, a trial judge should

consider, inter alia, the following relevant factors:

A(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 heterogeneous

group sharing race as their only common characteristic;

and (7) the race of the defendant, victim, and

witnesses.@ People v. Williams, 173 Ill. 2d 48, 71 (1996).

-18-

The list of factors would obviously be modified appropriately to

address claims of purposeful discrimination directed at other

protected groups.

The party attempting to exercise a peremptory challenge is

not required to provide race-neutral reasons for the exercise of

its peremptory challenge if a prima facie case of purposeful

racial discrimination has not been demonstrated. See Batson,

476 U.S. at 97, 90 L. Ed. 2d at 88,106 S. Ct. at 1723. A ruling

on the sufficiency of a prima facie case of purposeful

discrimination is a finding of fact that will not be reversed

unless it is against the manifest weight of the evidence. People

v. Coleman, 155 Ill. 2d 507, 514 (1993).

As this court has noted, a trial court=s third stage finding on

the ultimate issue of discrimination rests largely on credibility

determinations. McDonnell v. McPartlin, 192 Ill. 2d 505, 527

(2000). Consequently, the trial court=s finding is entitled to

Agreat deference@ and will not be set aside unless clearly

erroneous. McDonnell, 192 Ill. 2d at 527; People v. Munson,

171 Ill. 2d 158, 175 (1996). As the Supreme Court observed in

Hernandez v. New York, 500 U.S. 352, 365, 114 L. Ed. 2d 395,

409, 111 S. Ct. 1859, 1869 (1991), there will seldom be much

evidence bearing upon the ultimate question of discrimination

and the Abest evidence often will be the demeanor of the

attorney who exercises the challenge.@ The evaluation of the

attorney=s state of mind is most often Abased on demeanor and

credibility@ and thus Alies >peculiarly within the trial judge=s

province.= @ Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409,

111 S. Ct. at 1869, quoting Wainwright v. Witt, 469 U.S. 412,

428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854 (1985). As the

Supreme Court acknowledged in Hernandez, the credibility of

the attorney=s explanation Agoes to the heart of the equal

protection analysis, and once that has been settled, there

seems nothing left to review.@ (Emphasis added.) Hernandez,

500 U.S. at 367, 114 L. Ed. 2d at 410, 111 S. Ct. at 1870.

With these principles in mind, we turn to the question of the

trial court=s standing and authority to raise a Batson issue sua

sponte. Applying the Supreme Court=s three criteria for

standing, and our own state principles, it seems clear to us that

trial courts possess such authority.

-19-

First, the Supreme Court=s pronouncements dictate the

conclusion that a trial court suffers an injury as significant as

either of the parties when discrimination takes place in jury

selection. In Powers, the Court explicitly stated that the Aovert

wrong@ of discrimination in jury selection Acasts doubt over the

obligation of *** the court to adhere to the law throughout the

trial of the cause.@ Powers, 499 U.S. at 412, 113 L. Ed. 2d at

426, 111 S. Ct. at 1371. In J.E.B., the Court observed that the

A[d]iscriminatory use of peremptory challenges may create the

impression that the judicial system has acquiesced in

suppressing full participation@ by the aggrieved juror. J.E.B.,

511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct. at 1427. In

short, perceived discrimination in jury selection reflects

negatively on the integrity of the judge who presides over the

proceedings.

Second, as the appellate court in this case observed, Athe

relationship between the trial court and the jury is even closer

than the relationship between the parties and the jury.@ 348 Ill.

App. 3d at 175. As the appellate court noted: AThe trial court

and the jury are the only participants in the trial duty bound to

act impartially, and the jury relies on the trial court for its

instructions ***.@ 348 Ill. App. 3d at 175. Indeed, the jurors look

to the trial judge as the overseeing authority and impartial

arbiter of the proceedings, and the judge is the only participant

in the trial who will supervise and direct their activities while

they serve as jurors. As a practical matter, the presiding judge

is an authority figure for those who serve as jurors. Thus, we

find that the second criterion for standing has been satisfied.

Finally, the Supreme Court has already found that the third

criterionBhindrance to the third party=s ability to protect its own

interestsBexists in this context. In Powers, the Court concluded:

A[T]here exist considerable practical barriers to suit by the

excluded juror because of the small financial stake involved

and the economic burdens of litigation. [Citations.] The reality

is that a juror dismissed because of race probably will leave the

courtroom possessing little incentive to set in motion the

arduous process needed to vindicate his own rights.@ Powers,

499 U.S. at 415, 113 L. Ed. 2d at 428, 111 S. Ct. at 1373.

-20-

Thus, Supreme Court precedent supports our conclusion that a

trial court has the standing to raise a Batson issue sua sponte.

Moreover, this court has held that courts possess the

inherent power Ato enable them to perform their judicial

functions with *** dignity.@ People ex rel. Bier v. Scholz, 77 Ill.

2d 12, 19 (1979). Since the A[d]iscriminatory use of peremptory

challenges may create the impression that the judicial system

has acquiesced in suppressing full participation@ of potential

jurors (J.E.B., 511 U.S. at 140, 128 L. Ed. 2d at 104, 114 S. Ct.

at 1427), it follows that the trial judge should have the means to

preserve the dignity of his or her office. Furthermore, this court

has held that a trial court has the rightBthough not the dutyBto

remove a juror for cause. See People v. Metcalfe, 202 Ill. 2d

544, 557 (2002). Granting trial courts the authority to raise

Batson issues sua sponte is merely a logical extension of the

powers circuit courts already possess. Thus, we conclude that

a trial court has the authority to raise a Batson issue sua

sponte in appropriate circumstances.

Our holding in this regard is consistent with the conclusion

reached by courts of other jurisdictions. See Hitchman v. Nagy,

382 N.J. Super. 433, 889 A.2d 1066 (2006); People v. Bell, 473

Mich. 275, 702 N.W.2d 128 (2005); State v. Evans, 100 Wash.

App. 757, 998 P.2d 373 (2000); Commonwealth v. Carson, 559

Pa. 460, 741 A.2d 686 (1999); Williams v. State, 669 N.E.2d

1372 (Ind. 1996); Brogden v. State, 102 Md. App. 423, 649

A.2d 1196 (1994); Lemley v. State, 599 So. 2d 64 (Ala. Crim.

App. 1992). However, as the court observed in Hitchman,

courts so holding have generally been careful to insist upon a

clear indication of a prima facie case of purposeful

discrimination before trial courts are authorized to act.

Hitchman, 382 N.J Super. at 444-47, 889 A.2d at 1072-74. We

agree that a prima facie case of discrimination must be

abundantly clear before a trial court acts sua sponte. Moreover,

when a trial court chooses to act sua sponte, it must make an

adequate record, consisting of all relevant facts, factual

findings, and articulated legal bases for both its finding of a

prima facie case and for its ultimate determination at the third

stage of the Batson procedure.

-21-

In this regard, we reject the appellate majority=s reliance

upon a general statement from this court=s opinion in People v.

Hudson, 157 Ill. 2d 401, 427-28 (1993), as a means to avoid

consideration of Awhether combined race-gender discrimination

can be used to establish a prima facie case under Batson.@ 348

Ill. App. 3d at 176-77. The appellate majority concluded that

Aonce the trial court rules on the ultimate question of

discrimination, the question of whether a prima facie case had

been established is moot.@ 348 Ill. App. 3d at 177, citing

Hudson, 157 Ill. 2d at 427. Such a statement does indeed

appear in Hudson, on more than one occasion; however, the

statement has been taken out of its original context, and it does

not comport with the procedural requirements we hereby adopt

when a trial court acts sua sponte to raise a Batson issue.

In Hudson, this court quoted from the Supreme Court=s

opinion in Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d

395, 111 S. Ct. 1859 (1991): A >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.= @ Hudson,

157 Ill. 2d at 427, quoting Hernandez, 500 U.S. at 359, 114 L.

Ed. 2d at 405, 111 S. Ct. at 1866. We later observed: A[T]his

court has recently held that once the trial court rules on the

ultimate question of discrimination, the question of whether the

defendant established a prima facie case became moot.

People v. Mitchell (1992), 152 Ill. 2d 274, 289-90.@ Hudson,

157 Ill. 2d at 427-28. This court then concluded its discussion

of the issue, stating, APursuant to Hernandez, the question of

whether defendant in the instant case established a prima facie

case of discrimination became moot when the trial court found

the State=s explanations were valid.@ (Emphasis added.)

Hudson, 157 Ill. 2d at 428. Similarly, in Mitchell, this court cited

Hernandez in support of its conclusion that Athe question of

whether defendant established a prima facie case of racial

discrimination became moot when the trial court found that the

prosecutor=s explanations for the challenges were valid and

neutral.@ (Emphasis added.) Mitchell, 152 Ill. 2d at 289. Indeed,

in Hernandez, the reasons given by the prosecutor were also

-22-

deemed valid and neutral. Hernandez, 500 U.S. at 372, 114 L.

Ed. 2d at 414, 111 S. Ct. at 1873.

Clearly, whether a prima facie case of discrimination exists

at the outset becomes a moot point after the trial court finds

valid and race-neutral reasons supporting the peremptory

challenge and a court of review ultimately affirms that ruling.

The party exercising a peremptory challenge suffers no

prejudice in that instance because the juror in question is

excused pursuant to that party=s original challenge. The

converse, however, is not true. Where a prima facie case does

not exist, a party whose challenge is ultimately denied is

prejudiced, because the matter should not have been

advanced to the second step of the Batson process, and he

should never have been compelled by the trial court to offer

justification for his challenge in the first place. By definition, a

Aprima facie case@ entails A[t]he establishment of a legally

required rebuttable presumption@ or A[a] party=s production of

enough evidence to allow the fact-trier to infer the fact at issue

and rule in the party=s favor.@ Black=s Law Dictionary 1228 (8th

ed. 2004). In every procedural context wherein a prima facie

case is required, the party with the burden of establishing a

prima facie case must first meet its burden in order to advance

the litigation to subsequent stages and, ultimately, to be

entitled to relief. See generally People v. Orth, 124 Ill. 2d 326,

338 (1988) (ASince the [initial] burden was upon the

[suspended] motorist [to present a prima facie case for

rescission], the circuit court erred: first, by requiring the State to

go forward with evidence justifying the suspension, and,

second, by rescinding the suspension even though the motorist

had not presented any evidence for rescission@). The burden of

establishing a prima facie case of purposeful discrimination in

jury selection is on the party making the Batson claim.

McDonnell v. McPartlin, 192 Ill. 2d 505, 526 (2000). It defies

procedural logic that proof of a prima facie case could be

insufficient to advance the Batson process to the second and

third steps; yet, the party attempting to exercise its challenge

could ultimately lose when the matter is erroneously advanced

to the subsequent stages. Therefore, when a party is ultimately

denied its right to exercise a peremptory challenge, we hold

-23-

that matters bearing upon the first stage of the Batson process

are properly within the scope of appellate review and not moot.

Comprehensive appellate review of Batson proceedings,

and adequate records and findings enabling such a review, are

critical when a trial court decides to raise a Batson claim sua

sponte. There are at least three reasons why this is so. First, a

litigant objecting to an opposing party=s peremptory challenge,

as the party making the Batson claim, would normally have the

burden of establishing a prima facie case of discrimination, and

the ultimate burden of establishing purposeful discrimination.

See McDonnell, 192 Ill. 2d at 526. When the trial court acts sua

sponte, it relieves a litigant of those burdens. Second, when a

trial court acts sua sponte, it necessarily means that the

opposing partyBin this case the StateBhas failed to act. The

evidentiary implications associated with that inaction are not

conclusive, but they are nonetheless cause for concern.

Inaction may suggest that the opposing party did not perceive

circumstances indicating purposeful discrimination, which in

some instances may indicate that no such circumstances exist.

In that situation, articulation of the bases for the trial court=s

finding is essential, because the normal adversarial process

will not provide the requisite bases and record. Finally, without

an adequate record, consisting of all relevant facts, factual

findings, and articulated legal bases for both the trial court=s

finding of a prima facie case and its ultimate determination at

the third stage of the Batson procedure, the trial court=s rulings

may be virtually immune from appellate review. If, for example,

we were to holdBas the appellate court didBthat the existence

of a prima facie case is a moot point, we would not be able to

review the circuit court ruling that required defense counsel to

justify his peremptory challenge of Gomez. Once that

procedural frontier is crossed, the outcome of the Batson

inquiry then hinges upon whatever facts the trial court has

deigned to provide for us and, more importantly, whether the

trial court finds counsel=s explanation for the peremptory

challenge credible and benign. As the Supreme Court noted in

Hernandez, evaluation of the attorney=s state of mind is most

often Abased on demeanor and credibility@ and thus Alies

-24-

>peculiarly within the trial judge=s province= @ (Hernandez, 500

U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting

Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854,

105 S. Ct. 844, 854 (1985)), Aand once that has been settled,

there seems nothing left to review.@ (Emphasis added.)

Hernandez, 500 U.S. at 367, 114 L. Ed. 2d at 410, 111 S. Ct.

at 1870. Thus, the inability to review the propriety of a trial

court=s first-stage Batson ruling, combined with the problems

associated with sua sponte action and a deficient record on

appeal, might well result in a decision that is for all intents and

purposes unreviewable, giving trial courts carte blanche to

applyBor misuseBthe principles of Batson in any way they wish.

That specter is the impetus for the procedural requirements we

adopt today. Indeed, strict adherence to the three-step

procedure specified by the Supreme Court would seem to be

the surest way to guarantee compliance with Batson principles.

We now examine the pertinent portions of the record in this

case. During defense counsel=s brief preliminary questioning of

juror Gomez, counsel inquired about Gomez=s employment

with an out-patient clinic of Cook County Hospital. Gomez

acknowledged that Cook County Hospital is known for the

treatment of gunshot victims and, as a part of her employment

at the clinic, she has contact with patients, Achecking them in.@

When defense counsel sought to excuse Gomez, the trial

judge raised the Batson issue, and compelled defense counsel

to Aarticulate a basis@ for the peremptory challenge, without any

mention of a prima facie case of discrimination or of any facts

bearing upon that issue. It was only after defense counsel had

begun to state the nondiscriminatory basis for his

challengeBGomez=s connection to the clinic and victims of

violent crimeBthat the court interrupted, noting that AMrs.

Deloris Gomez appears to be an African American.@ When

counsel observed that he had previously accepted an African-

American woman to sit on the jury, the court quickly pointed

out that Gomez was the second African-American woman that

the defense had sought to exclude. The court also stated it was

counsel=s articulated reason for the peremptory challenge that

was of particular concern. Obviously, the articulated reason for

a challenge is a matter of Aconcern@ only after a prima facie

-25-

case has been established. The existence of a prima facie

case is a prerequisite for the court to demand an explanation.

In any event, the court then stated for the record, AIf the State

in fact had done this, I certainly would have found they would

have established a prima facie case by the very reasonBwhat

I=m going to do is allow Ms. GomezBallow her to be seated, not

excuse her on the basis of your peremptory.@ It is telling that

the trial court never explained Athe very reason@ it believed a

prima facie case of discrimination existed. The court simply

stated, AI feel under these circumstances the reasons given by

you, Mr. Decker, do not satisfy this Court. As far as I=m

concerned, it=s more than a prima facie case of discrimination

against Mrs. Gomez. I=m not going to allow her to be excused.@

Defense counsel then asked for, and was granted, leave to

conduct further questioning of Gomez. In the course of that

questioning, Gomez conceded that some of the patients she

interacts with are Avictims of gun violence@; however, she

maintained that fact would not affect her ability to be fair. After

questioning Gomez, defense counsel explained that he was

Anot trying to excuse a juror because of her race.@ Counsel

then stated that one consideration was his attempt to Aget

some impact from *** men in the case@ as the jury panel was

then composed of Apredominantly women.@ Counsel further

informed the court that he was familiar with the clinic where

Gomez worked and it was Awall to wall victims and patients.@

Counsel described it as Aa disturbing place.@ The court

responded: AI=ve had the opportunity to question Deloris

Gomez[,] who I find is a very intelligent lady. I considered her

statements very carefully, her testimony very carefully, and I

again feel that she shall sit as a juror.@ In view of the court=s

ruling, defense counsel then chose to exercise his fourth

peremptory challenge against Kurich. With respect to that

peremptory challenge, the judge responded, AWith reluctance, I

will allow it.@

Because the trial court did not state the basis for its finding

of prima facie discrimination, we do not know whether the trial

court believed the peremptory challenge defendant sought to

exercise against Gomez represented an instance of racial

discrimination, or gender discriminaton, or combined race-

-26-

gender discrimination. We do know that defendant had

exercised a peremptory challenge against an African-American

woman previously, and had accepted another African-

American woman for service on the jury. Morever, the record

indicates that defense counsel had previously exercised

peremptory challenges against Rosalee Huizenga and Thomas

Hickey, whose racial characteristics are not specified in the

record. In his opening brief, defendant states that Huizenga

Awas not a black woman and Thomas Hickey [was] a white

male.@ The State, in its own statement of facts, merely names

Huizenga and Hickey as persons who were excused by the

defense. The State does not dispute defendant=s

representation regarding their racial characteristics. In fact, in

arguing that the trial court did not act on the basis of perceived

race-gender discrimination, the State asserts that Athe trial

court=s remarks make it clear that the court=s sua sponte

reverse-Batson challenge was grounded solely on the race of

Ms. Gomez.@ The State=s argument in that respect necessarily

admits that Hickey was white, because, if he was not, the trial

court surely would have commented on the use of a

peremptory to excuse him, and it did not. Given the statements

of the parties and the court on the record, it is reasonable to

assume, at least, that Huizenga was not an African- American

woman, and Hickey was a white male.

Normally, 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. People v. Evans, 186 Ill. 2d 83, 92 (1999); see also

People v. Furdge, 332 Ill. App. 3d 1019, 1031 (2002). Given

the requirements we impose today, when a trial court acts sua

sponte, the trial court must see to it that adequate facts are

preserved in the record to support its ruling, and the trial court

in this instance has not done so.

This court has held that the mere number of African-

American venirepersons peremptorily challenged, without

more, will not establish a prima facie case of discrimination.

People v. Heard, 187 Ill. 2d 36, 56 (1999); Garrett, 139 Ill. 2d at

203. Where a party claiming a Batson violation has not

provided any other information to support his claim of

-27-

discriminatory jury selection, he has failed to establish a prima

facie case. Heard, 187 Ill. 2d at 56. The number of persons

struck takes on meaning only when coupled with other

information such as the racial composition of the venire, the

race of others struck, or the voir dire answers of those who

were struck compared to the answers of those who were not

struck. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044

(11th Cir. 2005). As previously noted, in determining whether

the objector has demonstrated purposeful discrimination

against African-Americans at the prima facie stage, a trial

judge should consider the following relevant factors:

A(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 heterogeneous

group sharing race as their only common characteristic;

and (7) the race of the defendant, victim, and

witnesses.@ People v. Williams, 173 Ill. 2d 48, 71 (1996).

We also note, when a Batson claim is made regarding

discrimination against a particular race, the unchallenged

presence of jurors of that race on the seated jury is a factor

properly considered (People v. Brown, 172 Ill. 2d 1, 35 (1996);

see People v. Martinez, 335 Ill. App. 3d 844, 854 (2002)) and

tends to weaken the basis for a prima facie case of

discrimination (Ochoa-Vasquez, 428 F.3d at 1044-45).

Examining the facts that are included in this record, in the

framework of the foregoing factors, we see no clear indication

of a prima facie case of racial discrimination. The only factor

that appears to weigh in favor of finding a prima facie case is

the fact that defendant is Hispanic and both the victim and

Gomez were African- American. Given the current state of the

record, we find that none of the other considerations supports

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the trial court=s apparent belief that a prima facie case existed.

First, we do not find an impermissible pattern of strikes against

African-Americans or a disproportionate use of peremptory

challenges against African-American venirepersons. We know

only that, prior to the attempt to strike Gomez, defense counsel

used peremptory challenges to strike one African-American

woman, but he also accepted one African-American woman for

service on the jury. Counsel also struck one woman who was

not African-American and a white male. It seems to us that for

this court to say that a pattern developed when defendant

attempted to strike a second African-American woman, we

would have to find that a pattern would have developed if

defendant had moved to strike a second woman who was not

of African-American heritage or a second white male. We do

not believe that inference is warranted or wise as it would

result in precedent that a pattern develops anytime a party

strikes more than one juror of any race or gender. Second, we

are unable to compare the level of African-American

representation in the venire with that of defendant=s juryBas

Illinois courts have done so effectively in prior cases (see

People v. Edwards, 301 Ill. App. 3d 966, 973-74

(1998))Bbecause the requisite information has not been made

a part of the record on appeal. Other than the African-

American woman accepted by defendant, we do not know the

race of any other members of the jury that convicted

defendant. Third, we do not find the questions or statements of

defense counsel particularly troubling prior to the time that the

trial court advanced the matter to the second stage of the

Batson procedure and demanded an explanation from counsel.

The questions asked by counsel pertained to Gomez=s

employment at a clinic and her contact with the victims of

violent crime. Defendant was on trial for a crime of violence.

We note in this regard that the Seventh Circuit Court of

Appeals has held that Aa challenge based on a juror=s social or

medical work is race-neutral and understandable@ in the

context of a criminal case. See United States v. Griffin, 194

F.3d 808, 826 (7th Cir. 1999), citing Coulter v. Gilmore, 155

F.3d 912, 919-20 (7th Cir. 1998). While defense counsel did,

eventually, make comments suggesting an impermissible

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gender-based motive for removing Gomez from jury service,

that remark was made after the court had already denied the

peremptory challenge, and it is unclear whether the factor had

a bearing on the court=s ruling as the basis for the court=s ruling

itself is uncertain. Finally, from this record, we are unable to

say that the African-Americans defendant sought to exclude

were a heterogeneous group sharing race as their only

common characteristic. In short, the record in its current state

does not reveal a prima facie case of racial discrimination, if

indeed thatBas opposed to race-gender discriminationBwas the

basis for the trial court=s sua sponte action.

In sum, we hold that a trial court may raise a Batson issue

sua sponte, but it may do so only when a prima facie case of

discrimination is abundantly clear. Moreover, the trial court

must make an adequate record consisting of all relevant facts,

factual findings, and articulated bases for both its finding of a

prima facie case and for its ultimate determination at the third

stage of the Batson procedure. The record in this case is

insufficient to demonstrate either a prima facie case of racial

discrimination or the bases for the trial court=s rulings.

Although we have previously warned circuit courts against

collapsing the Batson procedure, it was, perhaps, not clear

until today that the existence of a prima facie case of

discrimination would continue to be a relevant issue for

purposes of appeal where, as here, the circuit court ruled upon

the ultimate issue of discrimination, and decided that issue

adversely to the party attempting to exercise a peremptory

challenge. In this case, there may be evidence that was not

made a part of the record because the trial court believed that

the preliminary matter of a prima facie case would become

moot after it ruled on the third-stage issue.

In light of that possibility, we believe it is appropriate to

remand this cause to the circuit court for a limited hearing to

allow the trial judge an opportunity to articulate the bases for

his Batson rulings. We are particularly interested in findings of

fact and conclusions of law with respect to the threshold

question of a prima facie case of discrimination, and

clarification as to the kind of discrimination the trial judge

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believed to be in evidence when the defense sought to excuse

juror Gomez, i.e., race, gender, or combined race-gender. We

take judicial notice of the fact that the original trial judge, Judge Fiala, has

now retired from the bench. Given the unusual procedural circumstances of

this case, he may provide this information via affidavit if he so desires, pointing

to pertinent information already in the record, and identifying any physical

evidence not currently of record (such as juror questionnaires or profiles) that

the court and the parties utilized in the jury-selection process. We also offer

Judge Fiala an opportunity to explain his Areluctance@ to allow a subsequent

peremptory challenge against juror Kurich. In that respect, we note that a

defendant is entitled to an Aimpartial judge,@ meaning one who is not predisposed

to rule in a given manner. See People v. Williams, 124 Ill. 2d 300,

308 (1988). Following the reception of this evidence, the circuit court

shall file any supplemental record in this matter with the clerk of this court

within 60 days of the issuance of the mandate in this matter,

accompanied by a record of the proceedings on remand, and any request by the

parties to submit additional briefs or further argue issues pertaining to the

threshold question of a prima facie case of discrimination. After

proceedings on remand have been completed, and any

supplemental arguments have been considered, this court will

announce its judgment on any and all pending issues requiring

resolution at that time. See Garrett, 139 Ill. 2d at 195.

Cause remanded with directions.

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