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 November 29, 2007.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Michael Rivera, was charged in the circuit court of

Cook County with two counts of first degree murder. Following a jury

trial, 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. 210 Ill. 2d R. 315.

When the matter was initially before this court, defendant

advanced multiple arguments, all of which were merely facets of the

same Batson and Apprendi arguments defendant raised below.

Specifically, defendant submitted 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 “violation 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.

Upon our initial consideration of this matter, we held that a trial

court has the authority to raise a Batson issue sua sponte, but “it may

do so only when a prima facie case of discrimination is abundantly

clear.” People v. Rivera, 221 Ill. 2d 481, 515 (2006). We stated, when

a court acts sua sponte, “the trial court must make an adequate record

consisting of all relevant facts, factual findings, and articulated bases”

for its finding of a prima facie case. Rivera, 221 Ill. 2d at 515. We

concluded that the record before us did not reveal a prima facie case

of racial discrimination, “if indeed that *** was the basis for the trial

court’s sua sponte action” (Rivera, 221 Ill. 2d at 515), as the State

then argued (see Rivera, 221 Ill. 2d at 511 (“the State asserts that ‘the

trial court’s remarks make it clear that the court’s sua sponte reverse-

Batson challenge was grounded solely on *** race’ ”)). We remanded

this cause to the circuit court for a hearing on the matter of the

existence of a prima facie case of discrimination, urging the trial judge

to include in the record any omitted evidence pertinent to that

question and to articulate proper findings of fact and conclusions of

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law with respect to the threshold question of a prima facie case of

discrimination, specifying, in particular, what kind of discrimination

the judge believed was at issue, i.e., race, gender, or combined race-

gender. Because of our interim disposition, we did not address

defendant’s other issues.

The hearing in question has since been conducted, the trial judge

having stated on the record that he believed a prima facie case of

gender discrimination was evident when defense counsel sought to

excuse juror Deloris Gomez by peremptory challenge. The matter now

returns to this court for further consideration.

Pertinent facts prior to remand were fully set forth in our previous

opinion. We reiterate facts as necessary to provide a framework for

our disposition, beginning with the issue that resulted in remand.

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, “checking 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:

“MR. 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 “kindly

articulate a basis of why you are excusing Ms. Gomez.” Defense

counsel protested, “The court has done it on its own motion sua

sponte.” The trial court responded: “I will do it. It is the citizen’s right

to sit as a juror, and I will implicate myself sua sponte if I feel

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somebody’s rights are being impinged upon ***.” Defense counsel

then complied with the court’s directive, responding:

“Mrs. 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 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–.”

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

interrupted counsel, noting that “Mrs. Deloris Gomez appears to be

an African-American.” The court then asked to “hear 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,

apparently sensing the court’s sentiment, stated that the offered reason

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 female” 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:

“I’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

excused–Mrs. 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

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have established a prima facie case by the very reason–what

I’m going to do is allow Ms. Gomez–allow 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 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. After completing that questioning, counsel reiterated his

previous bases for excusing Gomez. In apparent response to his

perception of the court’s concerns, counsel stated he was “not trying

to excuse a juror because of her race.” He then noted that the jury was

comprised predominantly of women, and he offered that he was

“trying to get some impact from *** men in the case.” The circuit

judge responded that he would “override” counsel’s peremptory

challenge and would seat Gomez as a juror as there was no basis for

excusing her for cause.

Pursuant to our remand, a hearing was held on November 15,

2006. At that hearing, the trial judge, who had since retired, addressed

the bases for his Batson rulings.

Whether intentionally or unintentionally, the judge’s opening

remarks make clear that he found race a significant factor in explaining

his actions. He commenced with the observation that the murder

victim “was an African-American male” and his mother “was also

African-American.” The judge pointed out: “The Defendant is

Hispanic.” The judge then proceeded to comment on the gender of

jurors, but still noted racial characteristics:

“The jury was composed of a majority of women; I believe

after a review of the transcripts, nine women and three men.

One African-American female was accepted as a juror.

Another whose race was in fact unknown was excused as well.

Couldn’t tell by her name what race she belonged to. No one

had any personal recollection. One female was excused. She

had been African-American as well. Defendant sought to

excuse another female African-American, a Mrs. Gomez,

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peremptorily. She was the third female juror challenged by the

Defendant.”

The judge noted that defense counsel’s voir dire examination of

Gomez “essentially went to the nature of her employment and the

exposure she may have had to pictures of victims of violence.” When

counsel indicated he wanted to exercise a peremptory challenge

against Gomez, the judge asked the parties to join him in chambers,

where, according to the judge’s assertions in the November 2006

hearing, he indicated he was “raising a Batson issue because Mrs.

Gomez was in fact the second [sic] woman peremptorily challenged

by the Defendant.” We feel compelled to note, in passing, our

foregoing, comprehensive recitation of events at the original trial, and

our previous finding, which necessitated remand in the first place:

“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

discrimination, or combined race-gender discrimination.” (Emphasis

added.) Rivera, 221 Ill. 2d at 511. Contrary to the judge’s assertions

otherwise, he never stated a basis for his finding. Moreover, to further

clarify, we note, though the judge mentioned, in his remarks at the

November 2006 hearing, defense counsel’s subsequent comments as

a basis for finding a prima facie case of discrimination, those

comments were made in response to the court’s direction to “kindly

articulate a basis of why you are excusing Ms. Gomez.” Again, as we

pointed out in our prior disposition, under these circumstances, “[t]he

existence of a prima facie case is a prerequisite for the court to

demand an explanation.” Rivera, 221 Ill. 2d at 510. “[T]he articulated

reason for a challenge is a matter of ‘concern’ only after a prima facie

case has been established.” (Emphasis in original.) Rivera, 221 Ill. 2d

at 510. Thus, where as here, the trial judge required defense counsel

to explain the basis for exercising his peremptory challenge, the judge

cannot use counsel’s response to his command as a basis for finding

a prima facie case in the first instance; yet that is what the judge

appeared to do at the November 2006 hearing.

Thus, excluding remarks counsel made in response to, or as a

result of, the judge’s demand for a neutral explanation for the

challenge, the bases articulated by the judge for finding a prima facie

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case of gender discrimination against Gomez consist of the number of

challenges exercised against women, and the “nature of the questions”

counsel initially asked Gomez during voir dire. Although the judge

subsequently mentioned that his observation of the parties played a

part in the second and third steps of his Batson analysis, he made no

such comment with respect to his initial finding of a prima facie case.

He did not mention demeanor as a factor in that regard; nor did he

specify what aspect of defense counsel’s questioning troubled him.

At the outset of our analysis on this issue, we note the parties now

argue that differing standards of review apply to the question of

whether a prima facie case of discrimination was in evidence when the

trial judge acted sua sponte. As defendant acknowledges, in our prior

opinion, we stated that a manifest weight standard applied, relying

upon People v. Coleman, 155 Ill. 2d 507, 514 (1993). See Rivera,

221 Ill. 2d at 502. However, defendant urges us to adopt a de novo

standard with respect to questions of law inherent in the resolution of

this issue. The State contends that manifest weight is the correct

standard, quoting from this court’s opinion in People v. Mitchell, 152

Ill. 2d 274, 288 (1992) (“[t]he trial court’s [Batson] determination is

a matter of fact, involving an evaluation of credibility”). We observe

that the quote from Mitchell appears to apply to the ultimate Batson

determination, rather than the prima facie determination specifically.

That, however, is not the case with our prior reliance upon Coleman.

In any event, we reexamine this question in light of our prior

disposition in this matter. When this case was previously before us, we

remanded this cause to allow the trial judge an opportunity to

“articulate proper findings of fact and conclusions of law with respect

to the threshold question of a prima facie case of discrimination.”

Rivera, 221 Ill. 2d at 515-16. Such findings and conclusions are now

essential prerequisites to proper review of sua sponte action on the

part of the trial court, and a court that acts without making an

appropriate record does so at its own peril. Given those requirements,

we believe the appropriate standard of review should comport with

that structure.

We generally apply a bifurcated standard of review in situations

where a ruling presents a mixed question of law and fact. A trial

court’s ruling on a motion to suppress is a case in point. A trial

court’s findings of fact are not disturbed unless they are against the

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manifest weight of the evidence, but the ultimate legal determination

as to whether a motion to suppress should have been granted, based

on those findings, is a question of law to be reviewed de novo. See

People v. Pitman, 211 Ill. 2d 502, 512 (2004). Similarly, in

administrative review, an agency’s findings of fact are not reversed

unless they are against the manifest weight of the evidence, and

questions of law are reviewed de novo. Girot v. Keith, 212 Ill. 2d 372,

379 (2004). In light of the requirements we have imposed upon trial

courts acting sua sponte in this context, we believe the bifurcated

standard of review is appropriately applied here as well. Thus, when

a trial court raises a Batson issue sua sponte, the court’s findings of

fact, including any specific observations of record bearing upon

demeanor or credibility, will be accorded the deference the manifest

weight standard provides; however, the ultimate legal determination

based upon those findings is a legal determination we will make de

novo.

We turn to the facts and conclusions presented by the original

record, and the supplemental record compiled on remand, as they bear

upon the existence or nonexistence of a prima facie case of gender

discrimination, which is what the trial judge now claims prompted his

action. In that regard, we see only two factors cited by the judge in

support of his ruling. On remand, the judge stated he believed a prima

facie case of gender discrimination was indicated because of the

number of women peremptorily challenged by defendant (three) and

the “nature of the questions” counsel initially asked Gomez during

voir dire. Although the judge also referred to counsel’s conduct and

statements after the court demanded an explanation of counsel, as we

have held, under the circumstances of this case, comments or conduct

thereafter cannot serve as justification for the court’s intervention in

the first instance. See Rivera, 221 Ill. 2d at 510, 514.

Taking the relevant factors for evaluating a prima facie case of

alleged racial discrimination (People v. Williams, 173 Ill. 2d 48, 71

(1996)), and modifying accordingly for alleged gender discrimination

(see Rivera, 221 Ill. 2d at 501), we consider the following as pertinent

in this context:

(1) gender identity between the party exercising the

peremptory challenge and the excluded venirepersons; (2) a

pattern of strikes against female venirepersons; (3) a

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disproportionate use of peremptory challenges against female

venirepersons; (4) the level of female representation in the

venire as compared to the jury; (5) the questions and

statements of the challenging party during voir dire

examination and while exercising peremptory challenges; (6)

whether the excluded female venirepersons were a

heterogeneous group sharing gender as their only common

characteristic; and (7) the gender of the defendant, victim and

witnesses. See Rivera, 221 Ill. 2d at 501.

On remand, the trial judge stated that he believed a prima facie

case of gender discrimination was indicated because of the number of

women peremptorily challenged by defendant (three) and the “nature

of the questions” counsel initially asked Gomez during voir dire. The

judge’s assertions seem to implicate factors two through six set forth

above. Therefore, we will focus on facts bearing upon those factors

in our analysis.

The record in this case indicates that 7 men and 14 women were

examined for jury service prior to consideration of juror Gomez. Out

of that group, five men and four women were excused for cause.

Defendant used peremptory challenges to excuse one man and two

women. The State exercised a peremptory challenge against one

woman. Of the initial group of 21 venirepersons, one male was

accepted for jury service, and seven women were selected by the

parties. As the trial judge emphatically noted, the challenge defendant

exercised against juror Gomez was the second challenge against an

African-American female, and the third against a female generally.

Counsel had previously objected, unsuccessfully, to the excusal of an

Hispanic female for cause.

As we indicated in our prior opinion, the mere number of persons

in a protected class who are peremptorily challenged, without more,

will not establish a prima facie case of discrimination. Rivera, 221 Ill.

2d at 512, citing People v. Heard, 187 Ill. 2d 36, 56 (1999). The

number of persons struck takes on meaning only when coupled with

other information, such as the characteristics of the venire overall, the

characteristics of others struck, and the answers of those who were

not struck. Rivera, 221 Ill. 2d at 512, citing United States v. Ochoa-

Vasquez, 428 F.3d 1015, 1044 (11th Cir. 2005). The unchallenged

presence of jurors from the protected class on the seated jury is a

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factor properly considered (Rivera, 221 Ill. 2d at 513, citing People

v. Brown, 172 Ill. 2d 1, 35 (1996)) and tends to weaken the basis for

a prima facie case of discrimination (Rivera, 221 Ill. 2d at 513, citing

Ochoa-Vasquez, 428 F.3d at 1044-45). The party asserting a Batson

claim has the burden of establishing a prima facie case and preserving

the record. Rivera, 221 Ill. 2d at 512. As we held in our prior opinion,

that burden falls upon a trial court when it acts sua sponte. Rivera,

221 Ill. 2d at 512.

The record in this case simply does not support the action taken

by the trial court. Since women outnumbered men on the venire two

to one, it would not be unusual, from a statistical standpoint, that

defendant had used peremptory challenges against two women and

one man prior to consideration of juror Gomez. Moreover, although

defendant did not question Rosalee Huizenga–the second woman

challenged–he did question Elizabeth Alexander–the first woman

challenged–and he might well have decided to excuse her because her

cousin was a police officer and she was about to get a degree in

criminal justice. As far as juror Gomez is concerned, the fact that she

had frequent contact with gunshot victims seems to us a valid reason

why defense counsel might want to excuse her, and defense counsel’s

questioning reveals nothing of a discriminatory nature. If the trial

judge saw something in counsel’s demeanor or actions that led him to

believe otherwise, he has not seen fit to make those observations a

part of the record. The judge’s reference to the “nature of the

questions” counsel asked suggests that it was the content of the

questions that concerned him. However, the questions asked of

Gomez are a matter of record, and we see nothing in that questioning

which would support a prima facie case of gender discrimination–or,

for that matter, a case of racial discrimination.

The trial judge’s statements during jury selection, frankly,

suggested that he believed defense counsel was engaged in either

racial discrimination or combined race-gender discrimination.

Otherwise, why would the judge repeatedly emphasize that Gomez

was African-American? If gender were the only consideration, there

would be no reason to mention the juror’s race. It simply is not

relevant. It is interesting to note that the judge still felt obliged to

mention the race of the parties and persons in the venire on remand,

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when he was making a record to support a case for gender discrimination.

In any event, we find that the record fails to support a prima facie

case of discrimination of any kind. Consequently, the defendant was

improperly denied a peremptory challenge. The question, then, is

whether reversal is required.

The parties cite legions of cases from other jurisdictions in support

of their respective positions, the State arguing that the denial of the

peremptory challenge is subject to harmless-error analysis, and the

defendant arguing automatic reversal. We believe this issue can be

resolved on the basis of precedents from this court and the United

States Supreme Court, and our analysis will proceed accordingly.

As we noted in our prior opinion in this matter, the peremptory

challenge has been described by the United States Supreme Court as

“ ‘ “one of the most important of the rights secured to the accused” ’ ”

insofar as it eliminates “ ‘extremes of partiality on both sides.’ ”

Rivera, 221 Ill. 2d at 496, quoting Swain v. Alabama, 380 U.S. 202,

219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835 (1965), quoting

Pointer v. United States, 151 U.S. 396, 408, 38 L. Ed. 208, 214, 14

S. Ct. 410, 414 (1894). In Justice Scalia’s majority opinion in Holland

v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803 (1990),

he discussed the “venerable” history of the peremptory challenge,

stating:

“[T]hat device occupies ‘an important position in our trial

procedures,’ Batson, 476 U.S., at 98, and has indeed been

considered ‘a necessary part of trial by jury,’ Swain v.

Alabama, 380 U.S., at 219. Peremptory challenges, by

enabling each side to exclude those jurors it believes will be

most partial toward the other side, are a means of

‘eliminat[ing] extremes of partiality on both sides,’ ibid.,

thereby ‘assuring the selection of a qualified and unbiased

jury,’ Batson, supra, at 91 (emphasis added).” Holland, 493

U.S. at 484, 107 L. Ed. 2d at 918-19, 110 S. Ct. at 809.

In his dissent in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411,

111 S. Ct. 1364 (1991), Justice Scalia described the peremptory

challenge as “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.” Powers, 499 U.S. at 425, 113

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

by Rehnquist, C.J.). In its 1965 decision in Swain, the Supreme Court

stated, in dictum, that the denial or impairment of the right to a

peremptory challenge is “reversible error without a showing of

prejudice.” Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at

835.

Although various members of the Supreme Court continue to

acknowledge the importance of peremptory challenges, after Batson,

the status of the peremptory challenge underwent a gradual, but

marked change, culminating in the Court’s decision in United States

v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774

(2000), and it is now clear that the Supreme Court no longer

considers peremptory challenges indispensable to a fair trial or their

erroneous denial a matter necessarily requiring reversal.

We note, initially, that the passage from Batson, which Justice

Scalia quoted in part in Holland, actually states that peremptory

challenges are “one means of assuring the selection of a qualified and

unbiased jury.” (Emphasis added.) Batson, 476 U.S at 91, 90 L. Ed.

2d at 84, 106 S. Ct. at 1720. The qualification “one” suggests that the

Court does not consider peremptory challenges the only means of

assuring the selection of an impartial tribunal, nor, perhaps, a

necessary means. The Batson Court reiterated that “the Constitution

does not confer a right to peremptory challenges.” Batson, 476 U.S

at 91, 90 L. Ed. 2d at 84, 106 S. Ct. at 1720. In fact, the Court has

long recognized that there is nothing in the Constitution of the United

States which requires the granting of peremptory challenges in

criminal cases. Stilson v. United States, 250 U.S. 583, 586, 63 L. Ed.

1154, 1156, 40 S. Ct. 28, 30 (1919).

In 2000, the Supreme Court rendered its decision in United States

v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774

(2000), the case that appears to have signaled the end of Swain’s

automatic-reversal rule. In Martinez-Salazar, the Court first

differentiated between the right to an impartial jury and the right to

exercise peremptory challenges:

“[W]e have long recognized *** that such challenges are

auxiliary; unlike the right to an impartial jury guaranteed by

the Sixth Amendment, peremptory challenges are not of

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federal constitutional dimension.” Martinez-Salazar, 528 U.S.

at 311, 145 L. Ed. 2d at 800, 120 S. Ct. at 779.

Noting its previous holding in Ross v. Oklahoma, 487 U.S. 81, 101 L.

Ed. 2d 80, 108 S. Ct. 2273 (1988), a case in which a defendant was

forced to exercise a peremptory challenge to cure a trial court’s error

in denying a challenge for cause, the Court stated, “without more, ‘the

loss of a peremptory challenge [does not] constitute[ ] a violation of

the constitutional right to an impartial jury.’ ” Martinez-Salazar, 528

U.S. at 313, 145 L. Ed. 2d at 801, 120 S. Ct. at 780, quoting Ross,

487 U.S. at 88, 101 L. Ed. 2d at 90, 108 S. Ct. at 2278. In Martinez-

Salazar, the Court went on to hold, specifically, that a defendant’s

exercise of peremptory challenges is not denied or impaired when the

defendant chooses to use a peremptory challenge to remove a juror

who should have been excused for cause. Martinez-Salazar, 528 U.S.

at 317, 145 L. Ed. 2d at 804, 120 S. Ct. at 782. However, the most

significant part of the Supreme Court’s opinion for present purposes

is set forth in a footnote. As the briefs in this case indicate, that

footnote has caused courts across the country to reexamine the

automatic-reversal rule of Swain. That footnote states as follows:

“Relying on language in Swain v. Alabama, 380 U.S. 202

(1965), as did the Court of Appeals in the decision below,

Martinez-Salazar urges the Court to adopt a remedy of

automatic reversal whenever a defendant’s right to a certain

number of peremptory challenges is substantially impaired.

Brief for Respondent 29 (a ‘ “denial or impairment of the right

[to exercise peremptory challenges] is reversible error without

a showing of prejudice” ’) (quoting Swain, 380 U.S., at 219).

Because we find no impairment, we do not decide in this case

what the appropriate remedy for a substantial impairment

would be. We note, however, that the oft-quoted language in

Swain was not only unnecessary to the decision in that

case–because Swain did not address any claim that a defendant

had been denied a peremptory challenge–but was founded on

a series of our early cases decided long before the adoption of

harmless-error review.” Martinez-Salazar, 528 U.S. at 317

n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4.

Thus, in Martinez-Salazar, the Court clearly took issue with Swain’s

suggestion that the erroneous denial or impairment of the right to

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exercise a peremptory challenge requires automatic reversal,

characterizing that assertion as dictum, and signaling that legal

proposition is no longer good law in the age of “harmless-error

review.”

We observe that the footnote purports to address only “a remedy

of automatic reversal whenever *** a certain number of peremptory

challenges is substantially impaired.” (Emphasis added.) Martinez-

Salazar, 528 U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at

782 n.4. Obviously, in our situation, the question at hand concerns the

appropriate remedy when a defendant seeks to exercise a peremptory

challenge against a specific juror, and the challenge is disallowed.

However, the distinction appears to be one without a difference

insofar as the “oft-quoted language in Swain,” to which the Court

referred, broadly encompasses any “ ‘ “denial or impairment of the

right [to exercise peremptory challenges].” ’ ” Martinez-Salazar, 528

U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4,

quoting Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at 835.

Moreover, the denial of “a certain number” of peremptory challenges

is not significantly different from the denial of a peremptory challenge

against a specific juror. In the former instance, a party is denied the

opportunity to excuse a juror whom he suspects harbors some bias,

though he cannot prove it; the same is true in the latter instance. Thus,

we believe the observation in the footnote applies to the circumstances

presently before this court.

Defendant argues that we should not find that the Martinez-

Salazar footnote “impliedly overruled the automatic reversal rule.”

We see nothing “implied” in the language the Supreme Court

employed. The Court undermined the validity of Swain’s automatic-

reversal rule on two fronts: it was dictum and the rule was espoused

before the advent of harmless-error review. We believe the meaning

of the Martinez-Salazar footnote is explicit.

Of course, harmless-error review would not apply to an error

considered “structural” in nature. However, the error in question

would not seem to qualify as a “structural error.” While the Supreme

Court has recognized a number of “structural errors” requiring

automatic reversal (see Washington v. Recuenco, 548 U.S. __, __ n.2,

165 L. Ed. 2d 466, 474 n.2, 126 S. Ct. 2546, 2551 n.2 (2006)),

including trial before a biased trial judge (Tumey v. Ohio, 273 U.S.

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510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)), the erroneous denial of a

peremptory challenge has not been included in that list. In Recuenco,

the Court noted: “Only in rare cases has this Court held that an error

is structural, and thus requires automatic reversal. In such cases, the

error ‘necessarily render[s] a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.’ ” Recuenco,

548 U.S. at __, 165 L. Ed. 2d at 474, 126 S. Ct. at 2551. As the

Court stated in Recuenco: “ ‘ “[I]f the defendant had counsel and was

tried by an impartial adjudicator, there is a strong presumption that

any other [constitutional] errors that may have occurred are subject to

harmless-error analysis.” ’ ” Recuenco, 548 U.S. at __, 165 L. Ed. 2d

at 474, 126 S. Ct. at 2551, quoting Neder v. United States, 527 U.S.

1, 8, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827, 1833 (1999), quoting

Rose v. Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460, 471, 106 S. Ct.

3101, 3106 (1986). While trial before a biased tribunal would deprive

a defendant of a substantial right and constitute structural error (see

Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)),

there is no evidence that defendant was tried before a biased jury, or

even one biased juror. He does not suggest that Gomez was subject

to excusal for cause. Thus, we do not see the error as one fitting

within the Supreme Court’s framework of “structural errors.” Nor can

a “substantial right” be implicated, as the Supreme Court considers

harmless-error review applicable.

Defendant argues that harmless-error analysis cannot apply here

because “Gomez’s presence on the jury cannot be qualitatively

assessed for harm.” We disagree. The Supreme Court’s decision in

Neder, and our recent decisions in People v. Thurow, 203 Ill. 2d 352

(2003), and People v. Nitz, 219 Ill. 2d 400 (2006), illustrate the error

in defendant’s position.

In Neder, the Supreme Court held the omission of an element of

the charged offense from a jury instruction falls into the category of

errors amenable to harmless-error review. The Court observed:

“Unlike such defects as the complete deprivation of

counsel or trial before a biased judge, an instruction that omits

an element of the offense does not necessarily render a

criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” (Emphasis in original.)

Neder, 527 U.S. at 9, 144 L. Ed. 2d at 47, 119 S. Ct. at 1833.

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The Court went on to enunciate the test for determining whether a

constitutional error is harmless: “Is it clear beyond a reasonable doubt

that a rational jury would have found the defendant guilty absent the

error?” Neder, 527 U.S. at 18, 144 L. Ed. 2d at 53, 119 S. Ct. at

1838.

In People v. Thurow, 203 Ill. 2d 352 (2003), relying upon the

Supreme Court’s opinion in Neder, this court held that Apprendi

violations are subject to harmless-error analysis. In Thurow, as in Nitz,

a judge found an element necessary for sentence enhancement when

a jury should have been charged with that determination. In Thurow,

this court found the Apprendi violation harmless, stating:

“Given the evidence in support of this element, it is clear

beyond a reasonable doubt that a properly instructed, rational

jury would have found defendant guilty of involuntary

manslaughter against a household member. We therefore

conclude that the failure to instruct the jury as to this element

was harmless error.” Thurow, 203 Ill. 2d at 369.

In Nitz, we were called upon to address the appellate court’s

deviant application of harmless-error analysis to an Apprendi

violation. We noted:

“In applying that analysis *** the appellate court

determined that it should not use an objective standard when

determining whether a jury would have found defendant’s

crime to be brutal and heinous. 353 Ill. App. 3d at 1002.

Rather, it concluded that defendant ‘was constitutionally

entitled to have each element of his guilt decided beyond a

reasonable doubt by a jury of his choosing.’ (Emphasis in

original.) 353 Ill. App. 3d at 1003. Thus, the appellate court

considered ‘what Nitz’s jury, not some hypothetical jury,

would have decided had it been allowed to decide.’ 353 Ill.

App. 3d at 1003.” Nitz, 219 Ill. 2d at 407-08.

We rejected the appellate court’s subjective jury analysis, stating,

“Thurow establishes that an appellate court reviewing an Apprendi

error must examine the evidence and determine what a rational jury

would have found. *** [T]he appellate court in this case erred when

it failed to examine the evidence presented at trial and instead

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attempted to divine the thoughts of the 12 jurors who heard that

evidence.” Nitz, 219 Ill. 2d at 413-14.

Contrary to defendant’s argument otherwise, it may in fact be

possible to qualitatively assess for harm Gomez’s presence on the jury,

by applying the rational juror standard to the evidence adduced against

defendant. If the evidence is so overwhelming that no rational jury–or

juror–would have acquitted defendant of the offense, then Gomez’s

presence on the jury cannot be said to have prejudiced him. Thus, we

consider the evidence adduced in this case.

The State presented evidence that defendant shot and killed 16-

year-old Marcus Lee, erroneously believing that Lee was a member of

a rival gang. 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, “There 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 “stop

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 “shut

the fuck up,” advising them that he still had “one bullet left.”

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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 Sanchez 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. Sanchez then took defendant and three

other individuals back to the party. Shelton testified that she believed

defendant to be the “chief enforcer” of the Insane Deuces, a gang

position below the chief, or “jefe,” 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

gang–including defendant–were at his home that evening. Between

8:30 and 9 p.m. that night, the group was notified that there were

some “Stones” in a park near Rodriguez’s home. The group, including

defendant and a person named “Nelson,” went to the park, where they

saw some individuals playing basketball. Defendant began to “throw”

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 “pussies” 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 “Stone

killer,” and he indicated he had shot someone that evening. Rodriguez

identified Nelson as a “chief” of the gang, and defendant as the “chief

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 “chief

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 “old-G,” or

elder. Oberlin explained that his position was above that of “foot

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soldiers,” but below the chief enforcers, the chief and the vice-

president.

After the State rested, defendant proceeded by stipulation. It was

stipulated that on January 15, 1998, Oberlin had testified before the

grand jury that the last time he saw defendant with a gun was at a

laundromat on Belmont on January 8, 1998. Further, it was stipulated

that Rodriguez had testified before the grand jury that he did not see

an individual named Masina give defendant the handguns, but only

saw defendant with the handguns. Further, it was stipulated that

Rodriquez gave grand jury testimony indicating that when defendant

was explaining how he shot the victim, defendant stated that the

victim grabbed his chest, screamed, fell, and never got back up.

Finally, it was stipulated that Susan Shelton had testified before the

grand jury on January 12, 1998. Shelton testified that, when she was

in the van on the evening in question, she heard a gunshot and she

then put her head down and closed her eyes, whereafter she heard four

more gunshots.

The defense rested without presenting any witnesses.

During closing argument, the prosecutor argued, inter alia, that

defendant was the “chief enforcer” of the Insane Deuces and killed

Marcus Lee because he thought Lee was “a Stone.” The jury,

comprised of 11 unobjectionable jurors and Gomez, found defendant

guilty of first degree murder on this evidence.

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 5/5–5–3.2(b)(2) (West 1998)) and because defendant

was a leader in the Insane Deuces street gang and the murder was

related to the gang’s activities (see 730 ILCS 5/5–5–3.2(b)(8) (West

1998)). 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 “chief enforcer” of the gang, “it 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:

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“I 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, “It 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 contention–now discredited– that the

principles of Apprendi do not apply because the sentencing range for

first degree murder is “twenty 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 “the chief” and required him

to carry out the chief’s orders. The circuit court persisted in its prior

ruling and denied the motion for reconsideration.

We believe any rational trier of fact would have found defendant

guilty of murder on the evidence adduced at trial. Any inconsistencies

in the witnesses’ grand jury testimony were insignificant when

compared to their compelling trial testimony, consistently implicating

defendant as the perpetrator of the murder. The evidence of

defendant’s guilt is overwhelming, and the error in denying

defendant’s peremptory challenge is thus harmless beyond a

reasonable doubt. Since that is the case, we need not decide whether

the erroneous denial of a peremptory challenge is an error of

constitutional dimension in these circumstances.

Further, applying the analyses of Neder, Nitz and Thurow to

defendant’s Apprendi issue, we find the Apprendi violation harmless

beyond a reasonable doubt. Section 5–5–3.2(b)(8) of the Unified

Code of Corrections (730 ILCS 5/5–5–3.2(b)(8) (West 1998))

authorized an extended-term sentence:

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“When a defendant is convicted of a felony other than

conspiracy and the court finds that the felony was committed

under an agreement with 2 or more other persons to commit

that offense and the defendant, with respect to the other

individuals, occupied a position of organizer, supervisor,

financier, or any other position of management or leadership,

and the court further finds that the felony committed was

related to or in furtherance of the criminal activities of an

organized gang or was motivated by the defendant’s

leadership in an organized gang[.]” 730 ILCS 5/5–5–3.2(b)(8)

(West 1998).

Clearly, this murder was gang related and involved the participation

and agreement of defendant and two or more other persons. The

uncontradicted evidence indicates that defendant held a leadership

position in the gang and the murder was motivated by defendant’s

leadership position. The error in not submitting the enhancement issue

to a jury is harmless beyond a reasonable doubt.

Finally, defendant contends that the imposition of an extended-

term sentence in this case violated his right to a jury trial as

guaranteed by the Illinois constitution. He suggests that this right is

broader than that guaranteed by the federal constitution and such a

violation is not subject to a harmless-error analysis. Defendant’s

argument is interesting insofar as it begins with the relatively new

federal rule of procedure announced in Apprendi–a rule which we had

never recognized as required by our state constitution–and not only

assumes we would find such a requirement in Illinois’ constitution, but

also urges us to hold that its violation is not amenable to harmless-

error analysis.

In fact, an examination of our decisions over the decades suggests

no such requirement. With the exception of death penalty cases, the

longstanding procedure in Illinois has been for judges to make

sentencing determinations, including the finding of facts necessary to

support the sentences. Multitudes of such cases predate the 1970

Illinois constitution, and we have to assume the framers were aware

of them. Thus, when the defendant cites article I, section 13, of the

Illinois Constitution, wherein it is stated that “[t]he right of trial by

jury as heretofore enjoyed shall remain inviolate” (emphasis added)

(Ill. Const. 1970, art. I, §13), the right of which he speaks was

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apparently not one which included jury participation in the sentencing

phase of noncapital cases.

This court, in People v. Adkins, 41 Ill. 2d 297 (1968), made it

clear that sentencing in noncapital cases was a procedure distinct from

the adversary proceeding of a jury trial, and with different evidentiary

rules and standards:

“In Illinois, *** we have long held that the judge in

determining the character and extent of punishment is not

limited to considering only information which would be

admissible under the adversary circumstances of a trial.”

Adkins, 41 Ill. 2d at 300.

The rules did not change with the advent of extended-term sentencing

in the early 1970s. In People v. La Pointe, 88 Ill. 2d 482 (1981), a

case involving extended-term sentencing, this court quoted the

Supreme Court itself in differentiating between the evidentiary rules

then applicable to trial procedures and sentencing procedures: “ ‘In

addition to the historical basis for different evidentiary rules governing

trial and sentencing procedures there are sound practical reasons for

the distinction.’ ” La Pointe, 88 Ill. 2d at 496, quoting Williams v.

New York, 337 U.S. 241, 246-51, 93 L. Ed. 1337, 1342-44, 69 S. Ct.

1079, 1083-85 (1949). Relevance and reliability were the touchstones

for admissibility (People v. Fern, 189 Ill. 2d 48, 67 (1999)), and the

reasonable doubt standard that emerged from Apprendi was not a part

of noncapital sentencing in this state prior to that decision; nor was

the requirement that the trier of fact make findings pertinent to

sentencing.

In La Pointe, this court considered the constitutionality of one of

the very enhancement factors argued by the State in this case. In

La Pointe, defendant challenged the constitutionality of section

5–8–1(a)(1) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005–8–1(a)(1)),

which authorized natural life imprisonment when “the court” found a

defendant’s conduct to be “exceptionally brutal or heinous behavior

indicative of wanton cruelty.” La Pointe, 88 Ill. 2d at 499. Defendant

argued that the statute was unconstitutionally vague and therefore

violated due process requirements; he also argued that the felony

sentencing scheme, which offered the prospect of release to every

offender sentenced to a term of imprisonment excepting a small class

of murder defendants, violated equal protection of the law. La Pointe,

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88 Ill. 2d at 499. It likely never occurred to him, or any other

defendants, or the legislature, that a sentencing court could not,

constitutionally, make findings bearing upon sentence enhancement.

The only requirement was that the court advise the defendant, initially,

of the possible sentences he could face, including extended-term

sentences, upon proof of certain aggravating facts.

In response to Apprendi, the Illinois legislature changed section

1005–8–1(a)(1) to require the “trier of fact” to find an enhancement

factor “beyond a reasonable doubt.” See 730 ILCS 5/5–8–1(a)(1)

(West 2000). The legislature clearly felt no need to make those

changes prior to the Supreme Court’s decision in Apprendi, because

it was taken for granted that the judge was the sentencing fact finder

in noncapital cases prior thereto.

We have considered defendant’s extensive argument on this issue,

and we reject his contention that the Illinois constitution affords rights

beyond its federal counterpart in this respect. We see no appreciable

difference between the rights guaranteed by the federal and state

constitutions. As we noted recently in People v. Taylor, 221 Ill. 2d

157, 169 (2006):

“Both our federal and state constitutions preclude a criminal

felony conviction without the right to a jury trial. Specifically,

the sixth amendment to the United States Constitution states

that ‘[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury.’ U.S.

Const., amend. VI. Similarly, our state constitution provides

that ‘[i]n criminal prosecutions, the accused shall have the

right *** to have a speedy public trial by an impartial jury of

the county in which the offense is alleged to have been

committed.’ Ill. Const. 1970, art. I, §8.”

Although the harmless-error analysis we used in Thurow was based on

United States Supreme Court precedents interpreting the right to a

jury trial guaranteed by the federal constitution, we find nothing in

our own constitution, or our precedents, which would cause us to

interpret the Illinois constitution differently. Therefore, assuming,

arguendo, that the Illinois constitution requires a “trier of fact” to

make findings bearing upon sentence enhancement “beyond a

reasonable doubt,” we conclude that any violation of the right to a

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jury trial guaranteed by the Illinois constitution was harmless for the

same reasons discussed in Thurow.

For the foregoing reasons, we affirm the judgment of the appellate

court–though not the entirety of its analysis–insofar as that judgment

affirmed the judgment of the circuit court.

Affirmed.

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