Appeal from the Circuit Court of Cook County. No. 98 CR 3865. Honorable Edward M. Fiala Judge Presiding.
The opinion of the court was delivered by: Justice Tully
Following a jury trial, defendant, Michael Rivera, was found guilty of first degree murder (720 ILCS 5/9-1(A)(1) (West 1998)) and sentenced to 85 years' incarceration. Defendant timely appeals contending (1) the trial court erred when it sua sponte raised a reverse-Batson (see Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986)) challenge to his use of a peremptory challenge during jury selection, (2) his extended-term sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), and (3) his extended-term sentence violates his right to a jury trial as guaranteed by the Illinois constitution. We affirm.
Since defendant has not raised a challenge to the sufficiency of the evidence supporting his conviction for first degree murder, we may present the case facts with tragic and clear simplicity. Defendant was a member of the "Insane Deuces" street gang and held the rank of "chief enforcer." In the early morning hours of January 10, 1998, defendant was riding in a van with several individuals who were gang members. Defendant saw the victim walking near a housing complex known as the Lathrop Homes. Defendant mistakenly believed that the victim was a "Stone," a member of a rival gang. Defendant left the van accompanied by two fellow gang members. Defendant fired several shots from a revolver. One bullet struck the victim in the back of his head and killed him. After the shooting, defendant and the two other gang members returned to the van yelling gang slogans including "Stone killer." Later, displaying the revolver to other gang members, defendant bragged that he was a "Stone killer." The police recovered the revolver from another gang member.
Defendant's first contention arises out of his attempt to use a peremptory challenge during jury selection. The challenged juror was Deloris Gomez, a business office supervisor at Cook County Hospital. During voir dire questioning by defense counsel, Gomez acknowledged that Cook County Hospital is known for the treatment of gunshot victims. Gomez explained that she did not work at the hospital itself but at an out-patient clinic associated with the hospital. Gomez indicated that she would not be "set off one way or another" against defendant.
Following voir dire, defense counsel announced his intention to use a peremptory challenge against Gomez, and the trial court called for a conference in chambers. The trial court asked defense counsel to articulate a basis for excusing Gomez. The trial court said it was acting sua sponte because it felt compelled to react to what it perceived as a violation of the juror's rights. Defense counsel stated that he was excusing Gomez because she worked in a hospital that probably treats more gunshot victims than any other in the world, and she probably sees the victims of violent crime on a daily basis. The parties agreed that Gomez was the second African-American woman the defense had attempted to exclude and that the defense had previously accepted one other African-American woman.
The trial court commented that, although Cook County Hospital might have the reputation of having many emergency cases, Gomez worked in a business office in a clinical division of the hospital. The trial court held that the reasons given by defense counsel did not satisfy it, and ruled that Gomez would be seated over defense counsel's objection. However, the trial court granted defense counsel's request for additional voir dire questioning of Gomez.
During further questioning by defense counsel, Gomez admitted that she was aware that the hospital treated a "great number" of patients who were the victims of violent crimes. Gomez again indicated that she worked in a clinical division separate from the hospital's emergency room and that the clinic was in a separate building. Gomez admitted that some of the patients being treated at the clinic were the victims of violent crime. Gomez again indicated that her experience working in a hospital that treats the victims of violent crimes did not affect her ability to be fair and follow the instructions of the trial court. Defense counsel indicated that the basis for his peremptory challenge remained the same, but added that as an additional factor he was challenging Gomez because the jury was predominantly women and he was trying to get the impact of other men on the case. Defense counsel further indicated that he had been in the clinic and that it was a disturbing place with "wall to wall" victims. The trial court again held that Gomez would be seated as a juror over defense counsel's objection.
Defendant's remaining contentions challenge the validity of his extended-term sentence. During the sentencing hearing, the trial court asked the parties to discuss the impact of the Apprendi decision on the State's request for the imposition of an extended-term sentence. The State argued that Apprendi did not apply to Illinois' murder statute because the maximum possible sentence for first degree murder was death and an extended-term sentence could not be greater than a sentence of death. The State further argued that defendant was subject to an extended-term sentence because the crime was committed in an exceptionally brutal and heinous manner and, alternatively, because defendant held a leadership position in the gang. Defendant responded that the maximum sentence for first degree murder was 60 years' incarceration and that any factor extending that term must be submitted to the jury. Defendant further argued that, even if the trial court was allowed to make the determination, the evidence did not support a finding that he acted in a brutal or heinous manner or that he held a leadership position in the gang. The trial court held that Apprendi did not apply because the maximum penalty for first degree murder was death. The trial court found that defendant was subject to an extended-term sentence because he was the chief-enforcer of the gang and sentenced defendant to a term of 85 years' incarceration. Defendant subsequently filed a motion to reconsider his sentence incorporating his Apprendi arguments. The trial court denied defendant's motion.
Defendant first contends that the trial court erred when it sua sponte raised a reverse-Batson challenge to his attempt to use a peremptory challenge against Gomez. The starting point for any discussion of the discriminatory use of peremptory challenges is the Batson case itself. In Batson, the Supreme Court held that the use of peremptory challenges by the State in a racially discriminatory manner violates an accused's right to equal protection "because it denies him the protection that a trial by jury is intended to secure." Batson, 476 U.S. at 86, 90 L.Ed. 2d at 80, 106 S.Ct. at 1717. However, the Supreme Court also recognized the long-established principle that racial discrimination in jury selection unconstitutionally discriminates against the excluded juror. Batson, 476 U.S. at 87, 90 L.Ed. 2d at 81, 106 S.Ct. at 1718, citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Moreover, in a passage highly relevant to the case at bar, the Supreme Court identified a broader interest stating:
"The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson, 476 U.S. at 87, 90 L.Ed. 2d at 81, 106 S.Ct. at 1718.
The Supreme Court concluded that the State's use of peremptory challenges is subject to the commands of the equal protection clause stating:
"Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried [citation], the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson, 476 U.S. at 89, 90 L.Ed. 2d at 82-83, 106 S.Ct. at 1719.
In response to the potential equal protection violations, the Supreme Court created the now familiar three-step procedure used to address potentially discriminatory peremptory strikes. Batson, 476 U.S. at 93-98, 90 L.Ed. 2d at 85-89, 106 S.Ct. at 1721-1724; see also People v. Harris, 206 Ill. 2d 1, 17 (2002)(outlining the three-step procedure as applied by Illinois courts). First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Harris, 206 Ill. 2d at 17. Second, after a prima facie case is made, the State must articulate a race-neutral explanation for the excusing the venirepersons in question. Harris, 206 Ill. 2d at 17. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Harris, 206 Ill. 2d at 17. The Batson court, however, expressly refused to rule on whether the same procedure should be applied to defense counsel's use of peremptory challenges. Batson, 476 U.S. at 89 n.12, 90 L.Ed. 2d at 82 n.12, 106 S.Ct. at 1719 n.12.
The Supreme Court addressed the question it left unanswered in Batson in Georgia v. McCollum, 505 U.S. 42, 120 L.Ed. 2d 33, 112 S.Ct. 2348 (1992). In McCollum, the Supreme Court was presented with a so-called "reverse-Batson" issue, i.e., whether the limitation on peremptory challenges imposed on the State in Batson applies equally to criminal defendants. The Supreme Court observed that its resolution of the issue depended on the answers to the following four questions:
"First, whether a criminal defendant's exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by Batson. Second, whether the exercise of peremptory challenges by a criminal defendant constitutes state action. Third, whether prosecutors have standing to raise this constitutional challenge. And fourth, whether the constitutional rights of a criminal defendant nonetheless preclude the extension of our precedents to this case." McCollum, 505 U.S. at 48, 120 L.Ed. 2d at 44, 112 S.Ct. at 2353.
The Supreme Court answered the first three questions in the affirmative and the last in the negative and concluded that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory ...