JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.
Defendant, Michael Rivera, was charged in the circuit court of Cook County with two counts of first degree murder. Following a jury trial, defendant was found guilty and was subsequently sentenced to 85 years' incarceration in the Illinois Department of Corrections. Defendant appealed, arguing, that (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) the procedure resulting in the imposition of 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) the procedure resulting in the imposition of his extended-term sentence violated his right to a jury trial as guaranteed by the Illinois constitution. A divided appellate panel rejected those contentions and affirmed defendant's conviction and sentence. 348 Ill. App. 3d 168. We granted the plaintiff's petition for leave to appeal. 210 Ill. 2d R. 315.
When the matter was initially before this court, defendant advanced multiple arguments, all of which were merely facets of the same Batson and Apprendi arguments defendant raised below. Specifically, defendant submitted that (1) trial judges do not have third-party standing to raise Batson challenges sua sponte; (2) the trial court's sua sponte Batson challenge to defense counsel's peremptory strike of juror Deloris Gomez was incompatible with the three-step Batson process; (3) the trial court erred in proceeding to the second step of the Batson process where no inference of a prima facie case of discrimination had been established; (4) the trial judge erred in his ultimate determination that defense counsel discriminated against juror Gomez; (5) the trial court's improper denial of defense counsel's peremptory strike of juror Gomez was reversible error; (6) the trial court's "violation of state statutory and constitutional guarantees to jury trial" are not amenable to harmless-error review; (7) Apprendi violations are not subject to harmless-error review; and (8) Apprendi violations in this case are not harmless beyond a reasonable doubt.
Upon our initial consideration of this matter, we held that a trial court has the authority to raise a Batson issue sua sponte, but "it may do so only when a prima facie case of discrimination is abundantly clear." People v. Rivera, 221 Ill. 2d 481, 515 (2006). We stated, when a court acts sua sponte, "the trial court must make an adequate record consisting of all relevant facts, factual findings, and articulated bases" for its finding of a prima facie case. Rivera, 221 Ill. 2d at 515. We concluded that the record before us did not reveal a prima facie case of racial discrimination, "if indeed that *** was the basis for the trial court's sua sponte action" (Rivera, 221 Ill. 2d at 515), as the State then argued (see Rivera, 221 Ill. 2d at 511 ("the State asserts that 'the trial court's remarks make it clear that the court's sua sponte reverse-Batson challenge was grounded solely on *** race' ")). We remanded this cause to the circuit court for a hearing on the matter of the existence of a prima facie case of discrimination, urging the trial judge to include in the record any omitted evidence pertinent to that question and to articulate proper findings of fact and conclusions of law with respect to the threshold question of a prima facie case of discrimination, specifying, in particular, what kind of discrimination the judge believed was at issue, i.e., race, gender, or combined race-gender. Because of our interim disposition, we did not address defendant's other issues.
The hearing in question has since been conducted, the trial judge having stated on the record that he believed a prima facie case of gender discrimination was evident when defense counsel sought to excuse juror Deloris Gomez by peremptory challenge. The matter now returns to this court for further consideration.
Pertinent facts prior to remand were fully set forth in our previous opinion. We reiterate facts as necessary to provide a framework for our disposition, beginning with the issue that resulted in remand.
During jury selection, defense counsel questioned juror Deloris Gomez, a business office supervisor at Cook County Hospital's outpatient orthopedic clinic. In the course of that questioning, Gomez acknowledged that Cook County Hospital is known for the treatment of gunshot victims and, as a part of her employment at the clinic, she has contact with patients, "checking them in." Gomez said her interaction with the victims of violent crime would not affect her ability to serve as a juror in the case. Following voir dire, and apparently in the presence of Gomez and other prospective jurors, defense counsel announced his intention to use his fourth peremptory challenge against Gomez, as the following excerpt from the transcript indicates:
"MR. DECKER [defense attorney]: Your Honor, with thanks, we would ask to excuse Mrs. Gomez.
THE COURT: I'm going to ask you to remain, Mrs. Gomez. I'm going to ask counsel to join me, if the court reporter will join me, and the defendant will join me in chambers. Excuse me, ladies and gentlemen."
In chambers, the court directed defense counsel to "kindly articulate a basis of why you are excusing Ms. Gomez." Defense counsel protested, "The court has done it on its own motion sua sponte." The trial court responded: "I will do it. It is the citizen's right to sit as a juror, and I will implicate myself sua sponte if I feel somebody's rights are being impinged upon ***." Defense counsel then complied with the court's directive, responding:
"Mrs. Gomez has a connection to a hospital that on a daily basis probably sees more gunshot victims than any other hospital in the world ***. Given that fact that she's in the orthopedic section, I think on a daily basis even though she's a supervisor, even though she's not a rehabilitative nurse, she on a daily basis sees those victims who are victims of violent crime. For those reasons it constrains me. I know she has some kind of Hispanic connection given her name. I'm pulled in two different ways. For those reasons I asked that the--." At that point in defense counsel's explanation, the trial court interrupted counsel, noting that "Mrs. Deloris Gomez appears to be an African-American." The court then asked to "hear from" the State on the issue, the prosecutor having been totally silent and uninvolved to that juncture. After some initial observations regarding the theory of the case and the issue for the jury's consideration, the prosecutor, apparently sensing the court's sentiment, stated that the offered reason for excusing Gomez was insufficient. Defense counsel then noted that he had previously accepted an African-American woman to sit on the jury, and the court quickly pointed out that Gomez was the second "African-American female" that the defense had sought to exclude. The court stated it was the articulated reason given for the peremptory challenge of Gomez that was of particular concern. The court concluded:
"I've heard her answers to the questions. I've looked at her jury information form, and I'm quite frankly very much concerned, Counsel, as to why Mrs. Deloris is being excused--Mrs. Deloris Gomez is being excused. She works in a clinical division of this hospital. It may have a reputation of having many emergency cases, I presume, involving gunshot cases, but again she works in a business office, the very first line identifying her job.
I did this sua sponte because I was concerned about the right of Mrs. Gomez to be a juror and participate. If the State in fact had done this, I certainly would have found they would have established a prima facie case by the very reason--what I'm going to do is allow Ms. Gomez--allow her to be seated, not excuse her on the basis of your peremptory.
I feel under these circumstances the reasons given by you, Mr. Decker, do not satisfy this Court. As far as I'm concerned, it's more than a prima facie case of discrimination against Mrs. Gomez. I'm not going to allow her to be excused. She will be seated as a juror over objection." Defense counsel then asked for, and was granted, leave to conduct further questioning of Gomez, and noted defendant's objection of record. After completing that questioning, counsel reiterated his previous bases for excusing Gomez. In apparent response to his perception of the court's concerns, counsel stated he was "not trying to excuse a juror because of her race." He then noted that the jury was comprised predominantly of women, and he offered that he was "trying to get some impact from *** men in the case." The circuit judge responded that he would "override" counsel's peremptory challenge and would seat Gomez as a juror as there was no basis for excusing her for cause.
Pursuant to our remand, a hearing was held on November 15, 2006. At that hearing, the trial judge, who had since retired, addressed the bases for his Batson rulings.
Whether intentionally or unintentionally, the judge's opening remarks make clear that he found race a significant factor in explaining his actions. He commenced with the observation that the murder victim "was an African-American male" and his mother "was also African-American." The judge pointed out: "The Defendant is Hispanic." The judge then proceeded to comment on the gender of jurors, but still noted racial characteristics:
"The jury was composed of a majority of women; I believe after a review of the transcripts, nine women and three men. One African-American female was accepted as a juror. Another whose race was in fact unknown was excused as well. Couldn't tell by her name what race she belonged to. No one had any personal recollection. One female was excused. She had been African-American as well. Defendant sought to excuse another female African-American, a Mrs. Gomez, peremptorily. She was the third female juror challenged by the Defendant."
The judge noted that defense counsel's voir dire examination of Gomez "essentially went to the nature of her employment and the exposure she may have had to pictures of victims of violence." When counsel indicated he wanted to exercise a peremptory challenge against Gomez, the judge asked the parties to join him in chambers, where, according to the judge's assertions in the November 2006 hearing, he indicated he was "raising a Batson issue because Mrs. Gomez was in fact the second [sic] woman peremptorily challenged by the Defendant." We feel compelled to note, in passing, our foregoing, comprehensive recitation of events at the original trial, and our previous finding, which necessitated remand in the first place: "Because the trial court did not state the basis for its finding of prima facie discrimination, we do not know whether the trial court believed the peremptory challenge defendant sought to exercise against Gomez represented an instance of racial discrimination, or gender discrimination, or combined race-gender discrimination." (Emphasis added.) Rivera, 221 Ill. 2d at 511. Contrary to the judge's assertions otherwise, he never stated a basis for his finding. Moreover, to further clarify, we note, though the judge mentioned, in his remarks at the November 2006 hearing, defense counsel's subsequent comments as a basis for finding a prima facie case of discrimination, those comments were made in response to the court's direction to "kindly articulate a basis of why you are excusing Ms. Gomez." Again, as we pointed out in our prior disposition, under these circumstances, "[t]he existence of a prima facie case is a prerequisite for the court to demand an explanation." Rivera, 221 Ill. 2d at 510. "[T]he articulated reason for a challenge is a matter of 'concern' only after a prima facie case has been established." (Emphasis in original.) Rivera, 221 Ill. 2d at 510. Thus, where as here, the trial judge required defense counsel to explain the basis for exercising his peremptory challenge, the judge cannot use counsel's response to his command as a basis for finding a prima facie case in the first instance; yet that is what the judge appeared to do at the November 2006 hearing.
Thus, excluding remarks counsel made in response to, or as a result of, the judge's demand for a neutral explanation for the challenge, the bases articulated by the judge for finding a prima facie case of gender discrimination against Gomez consist of the number of challenges exercised against women, and the "nature of the questions" counsel initially asked Gomez during voir dire. Although the judge subsequently mentioned that his observation of the parties played a part in the second and third steps of his Batson analysis, he made no such comment with respect to his initial finding of a prima facie case. He did not mention demeanor as a factor in that regard; nor did he specify what aspect of defense counsel's questioning troubled him.
At the outset of our analysis on this issue, we note the parties now argue that differing standards of review apply to the question of whether a prima facie case of discrimination was in evidence when the trial judge acted sua sponte. As defendant acknowledges, in our prior opinion, we stated that a manifest weight standard applied, relying upon People v. Coleman, 155 Ill. 2d 507, 514 (1993). See Rivera, 221 Ill. 2d at 502. However, defendant urges us to adopt a de novo standard with respect to questions of law inherent in the resolution of this issue. The State contends that manifest weight is the correct standard, quoting from this court's opinion in People v. Mitchell, 152 Ill. 2d 274, 288 (1992) ("[t]he trial court's [Batson] determination is a matter of fact, involving an evaluation of credibility"). We observe that the quote from Mitchell appears to apply to the ultimate Batson determination, rather than the prima facie determination specifically. That, however, is not the case with our prior reliance upon Coleman.
In any event, we re-examine this question in light of our prior disposition in this matter. When this case was previously before us, we remanded this cause to allow the trial judge an opportunity to "articulate proper findings of fact and conclusions of law with respect to the threshold question of a prima facie case of discrimination." Rivera, 221 Ill. 2d at 515-16. Such findings and conclusions are now essential prerequisites to proper review of sua sponte action on the part of the trial court, and a court that acts without making an appropriate record does so at its own peril. Given those requirements, we believe the appropriate standard of review should comport with that structure.
We generally apply a bifurcated standard of review in situations where a ruling presents a mixed question of law and fact. A trial court's ruling on a motion to suppress is a case in point. A trial court's findings of fact are not disturbed unless they are against the manifest weight of the evidence, but the ultimate legal determination as to whether a motion to suppress should have been granted, based on those findings, is a question of law to be reviewed de novo. See People v. Pitman, 211 Ill. 2d 502, 512 (2004). Similarly, in administrative review, an agency's findings of fact are not reversed unless they are against the manifest weight of the evidence, and questions of law are reviewed de novo. Girot v. Keith, 212 Ill. 2d 372, 379 (2004). In light of the requirements we have imposed upon trial courts acting sua sponte in this context, we believe the bifurcated standard of review is appropriately applied here as well. Thus, when a trial court raises a Batson issue sua sponte, the court's findings of fact, including any specific observations of record bearing upon demeanor or credibility, will be accorded the deference the manifest weight standard provides; however, the ultimate legal determination based upon those findings is a legal determination we will make de novo.
We turn to the facts and conclusions presented by the original record, and the supplemental record compiled on remand, as they bear upon the existence or nonexistence of a prima facie case of gender discrimination, which is what the trial judge now claims prompted his action. In that regard, we see only two factors cited by the judge in support of his ruling. On remand, the judge stated he believed a prima facie case of gender discrimination was indicated because of the number of women peremptorily challenged by defendant (three) and the "nature of the questions" counsel initially asked Gomez during voir dire. Although the judge also referred to counsel's conduct and statements after the court demanded an explanation of counsel, as we have held, under the circumstances of this case, comments or conduct thereafter cannot serve as justification for the court's intervention in the first instance. See Rivera, 221 Ill. 2d at 510, 514.
Taking the relevant factors for evaluating a prima facie case of alleged racial discrimination (People v. Williams, 173 Ill. 2d 48, 71 (1996)), and modifying accordingly for alleged gender discrimination (see Rivera, 221 Ill. 2d at 501), we consider the following as pertinent in this context:
(1) gender identity between the party exercising the peremptory challenge and the excluded venirepersons; (2) a pattern of strikes against female venirepersons; (3) a disproportionate use of peremptory challenges against female venirepersons; (4) the level of female representation in the venire as compared to the jury; (5) the questions and statements of the challenging party during voir dire examination and while exercising peremptory challenges; (6) whether the excluded female venirepersons were a heterogeneous group sharing ...