The opinion of the court was delivered by: Justice Buckley
Appeal from the Circuit Court of Cook County. The Honorable Colleen McSweeney-Moore, Presiding Judge.
Following a joint jury trial in the circuit court of Cook County, both defendant, Edward Morales, and his co-defendant, Daniel Padilla, were convicted of two counts of murder (720 ILCS 5/9-1 (West 1992)) and sentenced to terms of natural life in the Illinois Department of Corrections. Previously, on direct appeal to this court, defendant, a Hispanic-American, contended that the State used its peremptory challenges in a discriminatory manner to exclude minorities from the jury. We found that the evidence "established a 'pattern' of strikes by the State against African-American and Hispanic venire members," and remanded the case to the circuit court "with directions to conduct a [Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)] hearing to determine whether the State can provide race-neutral explanations sufficient to rebut defendant's prima facie case." People v. Morales, No. 1--88--2812 (1996)(unpublished order under Supreme Court Rule 23).
On remand, the State offered explanations for its exercise of peremptory challenges as to certain African-American and Hispanic jurors, and defendant introduced testimony in rebuttal. The circuit court ruled that the State had successfully provided valid race-neutral explanations for excluding the minority jurors and affirmed defendant's conviction. Defendant appeals the circuit court's decision on remand and contends: (1) he is entitled to a new trial because the circuit court erred in finding that the State provided clear, reasonably specific, legitimate, race-neutral explanations for excusing African-American and Hispanic venirepersons during voir dire; (2) in the alternative, the case should be remanded for a new Batson hearing; and (3) the circuit court erred in denying defendant's request for the prosecutor's jury notes because the State waived its work product privilege. For the reasons given below, we reach only the first issue and accordingly reverse the judgment of the circuit court and remand for a new trial.
At defendant's trial, after the court had questioned 25 pro-spective jurors, and the State had exercised 10 of its 16 peremptory challenges by striking one Caucasian, five African-Americans, two Hispanics, one Arab and one Pakistani, defense counsel objected to the State's use of its peremptories to strike minorities. The trial court denied the motion without prejudice, but advised the prosecutor that he was "on the bubble from now on. Any minority that is excused you are going to have to justify and [the] justification is going to have to satisfy me." The prosecutor responded by relying on People v. Zayas, 159 Ill. App. 3d 554, 510 N.E.2d 1125 (1987), and stated that a defendant must be of the same suspect class as the excluded jurors to raise a Batson objection. He also argued that the defendants had not made out a prima facie case of discrimination because two of the selected jurors were Hispanic and one was African-American. The trial court stated that it would not require the State to further explain its peremptory challenges because Zayas was the prevailing law in this court.
On appeal, our decision determined defendant had established a prima facie Batson violation that suggested the "possibility of racial motivation." We relied on a United States Supreme Court decision issued subsequent to Zayas that held "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror are the same race." See Powers v. Ohio, 499 U.S. 400, 404, 113 L. Ed. 2d 411, 420, 111 S. Ct. 1364, 1367 (1991). In our order, we discussed the information elicited at voir dire and found that the excluded African-American and Hispanic venire members had no apparent similarity in family life, marital status, occupation, friendships with police officers or attorneys, or as victims of crime.
Nine of the venirepersons challenged during voir dire were the subject of the Batson hearing on remand. At the hearing, after the State offered explanations for its peremptory challenges, defendant presented evidence in rebuttal. *fn1 He first called Antonio Calderon to testify. Calderon testified that, before coming to the United States in 1972, he lived in Mexico. He felt that he had learned English and understood the questions at jury selection. Calderon said that he did not recall being questioned about his understanding of English.
Next, defendant called Gail McDonald. She testified that she was called to the jury box at the beginning of jury selection in this case and never slept during the selection process. She added that she was excited about the case and had hoped she would be picked to serve as a juror.
Defendant also submitted an affidavit from Judge Earl Strayhorn, the Judge who conducted the voir dire and presided over defendant's trial. In his affidavit, Judge Strayhorn stated that he did not have an independent recollection of the jury selection process in this case, and reading the transcript of the jury selection process did not refresh his recollection, but he had no reason to doubt the accuracy of the transcript. Despite having no independent recollection of the demeanor of the venirepersons, Judge Strayhorn stated he did not recall Gail McDonald sleeping during voir dire and that, if she had done this while seated in the jury box, he would have noticed. He did not recall Dawnita Hampton shaking her head during jury selection because such a movement would have triggered a question regarding her actions. Judge Strayhorn also did not recall Dexter Johnson being inattentive and sleepy during voir dire, because he would have noticed.
Judge Strayhorn added that he had read the voir dire of venire members Antonio Calderon and Askar Mohamed, and although he had no independent recollection of Calderon speaking with a heavy accent, Judge Strayhorn stated that his "normal practice and habit was reflected" in his questioning of Mohamed. If he detected that a person was having trouble speaking or understanding English he would normally say something on the record. This practice is reflected in Judge Strayhorn's question to Mr. Mohamed, "[a]nd you speak with an accent?"
At the Conclusion of the hearing, on September 26, 1997, the circuit court ruled that the State's reasons for excluding certain venirepersons were race neutral, and denied defendant's motion for a new trial. Specifically, the court stated:
"I find that this is not a case of clear discrimination. That the [S]tate has set forth valid, clear, rational, and specific race neutral reasons for all of the jurors that they had excluded.
I find the reasons are race neutral, they are valid, they are not pretextual, and the motion, there will be no new trial." The court found that in each case where the State's objection was demeanor based, there was also a factual explanation in the transcript of the voir dire that corroborated the State's objection. The court then stated that the affidavit submitted by Judge Strayhorn was of little help because he did not recall the voir dire examination. Finally, the trial court Judge also commented that she knew both of the assistant State's Attorneys and said "[t]heir reputations are widespread for having integrity."
We first address defendant's contention that the circuit court erred in finding the State's explanations at the hearing on remand to be legitimate, race-neutral reasons for the State's exercise of peremptory challenges against African-American and Hispanic venirepersons. In Batson v. Kentucky, the United States Supreme Court held that prosecutors who excluded potential jurors on the basis of their race violated the fourteenth amendment's guarantee of equal protection. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). In a subsequently decided case, the Supreme Court held that the defendant need not be of the same race as the excluded jurors to have standing to raise the constitutional violation. Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 411, 111 S. Ct. 1364 (1991). *fn2
Batson provides a three-step mode of analysis for the evaluation of racial discrimination claims in jury selection. See Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995) (per curiam) (emphasizing the distinct nature of steps two and three of the Batson analysis). The defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. If the defendant satisfies this initial burden, as in the case at bar, the burden then shifts to the prosecutor to articulate a race-neutral explanation for excluding the venire member in question. This step requires that the prosecutor give clear and reasonably specific, legitimate, race-neutral reasons. People v. Randall, 283 Ill. App. 3d 1019, 1025, 671 N.E.2d 60, 65 (1996). A race-neutral explanation is one based upon something other than the race of the juror. Randall, 283 Ill. App. 3d at 1025-26, 671 N.E.2d at 65 (offering an extensive list of acceptable race-neutral explanations). In assessing the explana-tion, the focus of the court's inquiry is on the facial validity of the prosecutor's explanation. Hernandez v. New York, 500 U.S. 352 360, 114 L. Ed. 2d 395 406, 111 S. Ct. 1859, 1866 (1991). The reasons given by the State need not rise to the level necessary to justify exclusion for cause, but they must constitute more than a mere denial of discriminatory motive. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24. However, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.
At the third stage of the Batson analysis, the court must determine whether the defendant has met his burden of proving purposeful discrimination. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24; Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1865-66 (1991) (plurality opinion); People v. Pecor, 286 Ill. App. 3d 71, 73, 675 N.E.2d 141, 142-43 (1996); People v. Randall, 283 Ill. App. 3d at 1025, 671 N.E.2d at 65. In other words, once the State has come forward with its reasons for striking the venirepersons, the trial court must assess the facial validity of the prosecutor's explanations (Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866) and determine whether the reasons given are suffi-cient or whether they are pretextual. People v. Harris, 129 Ill. 2d 123 (1989); People v. Nunn, 273 Ill. App. 3d 519, 652 N.E.2d 1146 (1995). Since the trial court's determination on this issue is factual and turns on credibility, its finding that the State excused minority venire members for race-neutral reasons will not be reversed unless it is clearly erroneous. Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; People v. Andrews, 155 Ill. 2d 286, 293-94 (1993).
We now examine each of the race-neutral explanations offered by the State to determine whether they are sufficiently race neutral and not pretextual. The following information was elicited during the voir dire at trial and the accompanying reasons for the peremptory ...