APPELLATE COURT OF ILLINOIS, SECOND DISTRICT 1987.IL.1153
521 N.E.2d 1172, 168 Ill. App. 3d 397, 118 Ill. Dec. 479
Appeal from the Circuit Court of Kane County; the Hon. Wilson D. Burnell, Judge, presiding
Supplemental opinion filed February 11, 1988
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Defendant, Nathaniel Allen, was convicted of burglary and sentenced to a term of seven years' imprisonment. This court affirmed the conviction in People v. Allen (1985), 137 Ill. App. 3d 823, 485 N.E.2d 469, and the Supreme Court of Illinois thereafter denied defendant's petition for leave to appeal. Certiorari was granted by the United States Supreme Court, which vacated the conviction and remanded the cause to this court for further consideration in light of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.
The parties have filed additional briefs, and the defendant, who is black, contends that he established at trial a prima facie showing that through the use of a peremptory challenge the prosecutor engaged in purposeful racial discrimination in the exclusion of a black juror. He argues that this court should find that a prima facie case was made and remand the cause to the trial court for a hearing in which the State would be required to come forth with a racially neutral explanation of its challenge of that juror.
The State agrees the matter should be remanded to the trial court for a "Batson" hearing, but contends that the question whether defendant has established a prima facie case of purposeful discrimination in selection of the petit jury should, in the first instance, be considered by the trial court. We agree.
At the time of the selection of the jury which decided this case the Illinois courts considered the issue of the misuse of peremptory challenges to exclude jurors for racial reasons under the guidelines set forth in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, and Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. Those guidelines provided that to raise a constitutional issue of purposeful discrimination a defendant must show that the State had systematically excluded prospective petit jurors on the basis of race by the exercise of peremptory challenges in case after case. (Payne, 99 Ill. 2d at 137; People v. Williams (1983), 97 Ill. 2d 252, 278, 454 N.E.2d 220. However, the procedural rules have been changed by the court in Batson v. Kentucky since the jury was selected in the present case. Now, to establish a prima facie case of discrimination, a defendant must first show that he is a member of a recognizable racial group and that the State used peremptory challenges to remove members of his race from the jury panel. In that event, a defendant is entitled to rely on the fact that peremptory challenges in jury selection do permit improper discrimination by one who is of a mind to do so. Finally, defendant must show that these facts, and any other relevant circumstances, raise an inference that the prosecutor exercised peremptory challenges to exclude those prospective jurors on account of their race. If the court determines on consideration of these factors that an inference of discriminatory exclusion of jurors has been raised, the burden shifts to the State to come forward with a racially neutral explanation for its peremptory challenge. Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.
It is apparent in this case that neither the trial court, the defendant, nor the State could have considered the new procedure mandated by the United States Supreme Court in resolving the issue, and we conclude that the trial court should make the initial determination of whether defendant has established a prima facie showing of purposeful racial discrimination. We consider also that defendant should have an opportunity to present evidence to establish a prima facie case under the Batson procedure in the circuit court rather than be required to rely entirely upon the sparse record made at trial under other rules.
Accordingly, this cause is remanded to the circuit court of Kane County for a hearing to be conducted in accordance with Batson v. Kentucky at which defendant will be permitted to present evidence to substantiate his claim of unconstitutional discrimination in the exercise of peremptory challenges when the jury was chosen. If the trial court finds that a prima facie showing of such discrimination has been made, it will then determine whether or not there is a neutral explanation by the State for its exercise of the questioned challenges. The trial court shall make findings of fact and Conclusions of law which, together with the record of the proceedings, shall be filed with the clerk of this court within 63 days of the filing of this opinion. This court retains jurisdiction for the purpose of reviewing the determination of the trial court, and the defendant and State will be allowed to submit supplemental briefs addressing the issue in this court.
LINDBERG, P.J., and UNVERZAGT, J., concur.
On remand, the circuit court held the hearing mandated by our initial opinion and the additional record and briefs of defendant and the State addressing the Batson issue have been filed in this court.
At the commencement of the hearing held in the circuit court on remand, the State stipulated that defendant had established a prima facie case of racial discrimination by the State's use of a peremptory challenge to exclude Arthur Ellis, a black man, from the jury which tried defendant, who is also black. Because of the stipulation, the burden shifted to the State to come forward with a race neutral explanation for challenging the potential juror. Batson, 476 U.S. at 97, 90 L. Ed 2d at 88, 106 S. Ct. at 1723.
Thomas Sullivan, a former assistant State's Attorney who had prosecuted the case and had by peremptory challenge excused Mr. Ellis as a juror, testified that at the time the jury was selected he considered the case to have racial overtones. Sullivan recalled that there had been a number of pretrial hearings, in one of which the State had sought to increase defendant's bond because of an unrelated theft charge, and attorney Sullivan believed that defendant felt his arrest and prosecution was racially inspired. Defendant had claimed that he had been manhandled by the police and intimated he had been arrested because he was the only black man on the street; attorney Sullivan felt that those matters were going to be advanced as a defense to the burglary prosecution. Sullivan further ...