Before this court, the State argues that the appellate court incorrectly found that defendant did not waive his right to raise a Batson claim. The State contends that defendant has waived his right to raise this issue for two separate reasons. The State first asserts that defendant's trial objection was untimely. Because defense counsel did not object to the State's use of peremptory challenges until after the jury was sworn, the State argues that under People v. Evans (1988), 125 Ill. 2d 50, defendant waived his right to raise this issue on appeal. The State also contends that defendant has waived his right to raise this issue because of the lack of evidence in the record to establish the race of the venire and jury; under People v. Gaines (1981), 88 Ill. 2d 342, and Evans, the State argues, a defendant waives the right to raise a claim concerning the State's use of peremptory challenges when he fails to preserve an adequate record of the race of the challenged jurors. The State also contends that the appellate court erred by undertaking a prima facie analysis instead of remanding that issue for the trial court to determine.
SUPREME COURT OF ILLINOIS
548 N.E.2d 1025, 132 Ill. 2d 451, 139 Ill. Dec. 469 1989.IL.2007
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James Schrier, Judge, presiding.
JUSTICE STAMOS delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
Defendant, Lawrence Andrews, was indicted for murder, armed robbery, and aggravated battery, and his first trial resulted in a hung jury. Following a second jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4). The trial court sentenced defendant to an extended term of 70 years' imprisonment on the murder conviction (see Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)), 30 years' imprisonment on the armed robbery conviction, and 5 years' imprisonment on the aggravated battery conviction, all to be served concurrently. The appellate court found that defendant had established a prima facie showing of racial discrimination in the State's use of peremptory challenges in violation of the United States Supreme Court decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and remanded the cause to the circuit court of Cook County with directions to conduct a hearing to allow the State to come forward with neutral explanations for the use of its peremptory challenges. (172 Ill. App. 3d 394.) We allowed the State's petition for leave to appeal (107 Ill. 2d R. 315(a)).
The issues before this court are whether defendant waived his right to assert a Batson violation and whether the trial court properly sentenced defendant to an extended-term sentence for his murder conviction.
The record establishes the following facts. On February 20, 1984, the victim and driver of the car, 18-year-old Richard Steinbrecher, and his 17-year-old girlfriend, Angela Atiles, exited the Eisenhower Expressway and stopped at a traffic signal. While waiting for the light to change, they were approached by two men, one of whom got into the passenger side of the car where Atiles was sitting and pointed a gun at both Steinbrecher and Atiles. Atiles identified this man as defendant Lawrence Andrews. The other man remained outside the car.
After trying unsuccessfully to pull away, by moving the gear shift, Steinbrecher told the two men to "be cool, we'll give you what you want." Following this, Atiles testified, she heard a "crack" and saw that defendant had shot Steinbrecher. The man she identified as defendant then hit her in the left eye with his gun and ordered, "Give me your money, bitch." She gave him $7, all the money she had, and the men left.
Steinbrecher died as a result of a gunshot wound to his right temple. Atiles was treated for an eye injury.
On appeal, defendant contended, inter alia, that the State used its peremptory challenges to systematically exclude blacks from the jury in violation of the equal protection clause of the United States Constitution, relying on Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which was held to apply retroactively to cases on direct review when Batson was decided (Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708). Defendant's trial took place in January 1986, and was on direct appeal when Batson was decided on April 30, 1986.
The appellate court rejected the State's argument that defendant had waived the right to raise a Batson challenge. The court found that the appearance of Justice in our court system is not fulfilled "if the trial court acquiesces in, condones or fails to preclude attempts by the prosecuting attorney to exclude blacks from the jury solely because they are black." (172 Ill. App. 3d at 402.) The court went on to find that "[w]e see no difference in considering the issue in this case than we would in considering any other plain error violation of constitutional dimension." 172 Ill. App. 3d at 402-03.
Notwithstanding its view of the proper role of the trial Judge, the court then considered whether defendant had established a prima facie showing of discrimination. The court cited this court's decision in People v. Hooper (1987), 118 Ill. 2d 244, in which this court retained jurisdiction of the cause and ordered the circuit court to conduct a Batson hearing to allow defendant in Hooper to attempt to establish a prima facie case; the appellate court, however, finding that Hooper was inapplicable, held that "the material facts are sufficiently demonstrated in the record so that we can decide, without prejudice to the defendant or the State, whether a prima facie case of racial discrimination . . . exists." (172 Ill. App. 3d at ...