APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
532 N.E.2d 543, 177 Ill. App. 3d 663, 126 Ill. Dec. 858
Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.
Supplemental opinion published at 185 Ill. App. 3d 208. 1988.IL.1863
JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., concurs. JUSTICE UNVERZAGT, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Defendant, Brenda M. Jones, was found guilty following a jury trial in the circuit court of Kane County of unlawful delivery of a substance containing less than 15 grams of cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2)). She was sentenced to a 30-month probationary term, conditioned, in part, upon receiving a drug and alcohol evaluation from the Kane County Diagnostic Center and upon her following its recommended course of treatment.
On appeal, defendant raises two issues: (1) whether she should receive a new trial because, although the trial Judge made findings which amounted to a determination that the prosecutor failed to provide a neutral explanation for his peremptory challenge of the only black person in the venire, he misapplied the law and denied her motion for a mistrial; and (2) whether the trial court improperly delegated its sentencing authority by ordering defendant, as a condition of probation, to submit to a drug evaluation program and to comply with any treatment recommended by the program.
During voir dire, the prosecuting attorney exercised a peremptory challenge against Donald Sivels, the only black member of the venire. Defendant is also black. At that point, defense counsel asked, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to hear an explanation as to why Sivels was excused. He noted that defendant and Sivels were of an identifiable racial grouping, that Sivels was the only black man in the venire, and that Batson allowed him to shift the burden to the State to explain the challenge.
The trial Judge responded that he believed it was up to the assistant State's Attorney to offer an explanation of why he excused Sivels. The assistant State's Attorney stated, in this regard, that he challenged Sivels because Sivels demonstrated a hesitancy when answering questions concerning whether or not he had strong feelings about the sale or possession of illegal drugs. He further maintained that he was concerned because Sivels had previously served on a civil jury and that he was afraid Sivels would confuse the burdens between the civil and criminal cases.
At that time, the trial Judge stated that, although he was not totally familiar with the Batson decision, he believed, based on the questioning and answers of Sivels, that there had not been a showing of cause to excuse Sivels. He also noted that if he had been the assistant State's Attorney, he would not have excused Sivels by use of a peremptory challenge. Defense counsel then moved for a mistrial which was denied. In denying defendant's motion, the trial Judge stated that the assistant State's Attorney "has a right to make peremptory challenges and he has exercised that right." Defendant was subsequently found guilty, and, as no issue is raised on the trial proceedings, we need not summarize the evidence adduced.
In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination in jury selection by the prosecuting attorney solely on the basis of evidence relating to the prosecutor's use of peremptory challenges at defendant's trial. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) The court stated further, that, in order to establish a prima facie case, the defendant must demonstrate that she is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove members of that group from the venire. Defendant is entitled to rely upon the fact that the existence of peremptory challenges enables those who are of a mind to discriminate in the jury selection process to do so. Defendant must show that these and any other relevant facts raise an inference that the prosecutor used peremptory challenges to exclude members of the venire from the jury on account of their race. 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.
The court stated in Batson that a pattern of strikes on the part of the prosecutor against members of defendant's race might give rise to an inference of purposeful discrimination, and the prosecutor's statements and questions during voir dire might either support or refute such an inference. (476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The court further stated:
"These examples are merely illustrative. We have confidence that trial Judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates [ sic ] a prima facie case of discrimination against ...