APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
541 N.E.2d 161, 185 Ill. App. 3d 208, 133 Ill. Dec. 324 1989.IL.984
Date Reported: Original Opinion of June 23, 1989 at 185 Ill. App. 3d 208.
JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and LINDBERG, J., concur.
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.
In her appeal, defendant initially raised 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 race-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.
In our original opinion in this case, People v. Jones (1988), 177 Ill. App. 3d 663, 532 N.E.2d 543, we considered only the first issue raised, that concerning the prosecutor's peremptory challenge of the only black person in the venire, and remanded to the circuit court to conduct a hearing under the principles enunciated in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, retaining jurisdiction to review the circuit court's decision following a Batson hearing and for consideration of the sentencing issue raised, but not decided, in our original opinion. The circuit court conducted the hearing and found that defendant had failed to establish a prima facie case of discrimination and, even if a prima facie case were shown, the prosecutor presented a racially neutral explanation for discharging the juror.
On return of the case to this court, defendant raises two additional issues: (1) whether her absence from the proceeding below requires another remandment for a new Batson hearing where she is present, and (2) whether the findings of the circuit court following the Batson hearing were an abuse of discretion.
During voir dire in the original trial, 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, 90 L. Ed. 2d 69, 106 S. Ct. 1712, 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.
At the hearing on remand, the court noted that defendant was not present. Defense counsel indicated that he wrote to defendant at her last known address informing her that the hearing was to be held on February 10, 1989. Defense counsel further stated that, assuming defendant received the letter, she had elected not to appear. The trial court asked if defense counsel was waiving defendant's presence, to which defense counsel replied, "I'm asking that her presence be waived." The trial court then asked if defense counsel meant for purposes of the hearing, to which defense counsel responded, "Yes, sir." The hearing was conducted without defendant being present.
As to the Batson issue, defense counsel pointed to juror Sivels' employment with the Department of Corrections, that he had a friend who is a police officer, that he had been a plaintiff in a prior lawsuit, that he had been a juror in a civil case, and that he had been a victim of a burglary, as indicating that Sivels would be a juror favorable to the State. He further noted that Sivels' answer to a ...