Appeal from the circuit court of Cook County. Honorable James A. Hett, Presiding. Original Opinion of February 25, 1993,
Justice Johnson delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.
The opinion of the court was delivered by: Johnson
JUSTICE JOHNSON delivered the opinion of the court:
Defendant now appeals from the remandment, asserting (1) the trial court considered the race-neutral reasons for excluding the jurors in question before he was afforded an opportunity to establish his prima facie case of purposeful discrimination; and (2) he was denied effective assistance of counsel as defense counsel invited the trial court to disregard this court's opinion and failed to present evidence to support his argument.
In our original opinion (Bohanan I) we found that the trial court improperly considered the State's race-neutral reasons for using its peremptory challenges to exclude the particular venirepersons before allowing defendant to demonstrate a prima facie case of purposeful discrimination. We clearly stated:
"The weighing of the State's explanations at the prima facie stage of the proceeding is manifestly improper. This contemporaneous evaluation of the State's explanations may not act as a thumb on the scales while a defendant's own prima facie case is being weighed to see whether such explanations will even be required. [Citation.] Examination of the State's reasons under these circumstances would, in effect, render the Batson standards insignificant. It is thus improper to allow the prosecutor's explanations to interfere with the trial court's evaluation of the defendant's showing of a prima facie case." People v. Bohanan (1993), 243 Ill. App. 3d 348, 351, 183 Ill. Dec. 788, 612 N.E.2d 45.
Although we clarified the error in the trial court's conduct in Bohanan I and even outlined the procedure to be followed on remand, the trial court failed to conduct the hearing in accordance with our mandate. Initially, defense counsel asserted that a prima facie showing of purposeful discrimination could be made considering the transcript of the pre-trial proceedings. The prosecutor was then allowed to respond to defense counsel's argument and he contended that the incompleteness of the record made it impossible to establish a prima facie showing. At the Conclusion of the arguments of both sides, the trial court stated in relevant part: "I find that there has been no prima facie case that has been made. I believe that the totality of the circumstances *** shows that there was no purposeful discrimination shown in the exercise of the [peremptory] challenges against these women."
Consequently, the trial court committed the same error at the hearing on remand as it did in the original pre-trial proceeding. It again improperly considered the State's race-neutral reasons for excluding the venirepersons before ruling on the question of defendant's establishment of a prima facie case. In fact, the trial court explicitly and erroneously stated: "I believe that this Court is allowed to listen to the explanations of the State in trying to arrive at a decision as to whether or not there is a prima facie case and by eventually ruling -- saying there was no Batson finding, because I didn't use the actual word there is no prima facie case." This procedure is precisely such that this court characterized as "manifestly improper" ( People v. Bohanan (1993), 243 Ill. App. 3d 348, 351, 183 Ill. Dec. 788, 612 N.E.2d 45), and such that this court specifically directed the trial court to correct at the Batson hearing on remand.
We unequivocally declared:
"Initially, the trial court must make a finding regarding defendant's showing of a prima facie case. At this stage of the proceeding, defendant may substantiate his claim with any additional evidence of purposeful discrimination. If the prima facie burden is met, the trial court must then consider the second prong of the test, i.e., evaluating the race-neutrality of the State's proposed reasons for the exclusion of the venirepersons.
Upon completion of the preceding steps, the trial court must make both credibility and factual determinations based upon the proffered evidence." Bohanan, 243 Ill. App. 3d at 352.
As the trial court neglected to follow our previous mandate, we reverse its findings and remand the cause for a second time and again instruct the trial court to follow the ...