Appeal from Circuit Court of Vermilion County. No. 09CF393. Honorable Nancy S. Fahey, Judge Presiding.
Remanded with directions.
Defendant's convictions for possession of cocaine, possession of cannabis, and resisting or obstructing a peace officer were remanded for a sufficient Batson hearing, and the appellate court would retain jurisdiction to review the trial court's ruling on remand and to review the remaining issues raised by defendant in his appeal with supplemental briefs from the parties with respect to any issues arising from the hearing on remand.
Michael J. Pelletier, Jacqueline L. Bullard, and Duane E. Schuster, all of State Appellate Defender's Office, of Springfield, for appellant.
Randall Brinegar, State's Attorney, of Danville (Patrick Delfino, David J. Robinson, and Aimee Sipes Johnson, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Holder White and Steigmann concurred in the judgment and opinion.
[¶1] In August 2009, the State charged defendant, Davey R. Shaw, Jr., with possession of a controlled substance (cocaine) (count I) (720 ILCS 570/402(c) (West 2008)), possession of cannabis (count II) (720 ILCS 550/4(a) (West 2008)), and resisting or obstructing a peace officer (count III) (720 ILCS 5/31-1(a) (West 2008)). After an October 2012 trial, a jury found defendant guilty of all three charges. In November 2012, defendant filed a motion for a new trial, which the trial court denied. In December 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364-day sentence for resisting or obstructing a peace officer and a 30-day sentence for possession of cannabis.
[¶2] Defendant appeals, arguing the trial court (1) erred in refusing to conduct a Batson hearing ( Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)); (2) erred in admitting evidence, over objection, and allowing argument that possession of cannabis was a " fine-only" offense; and (3) violated his constitutional right to confront witnesses when it heard witness testimony outside his presence. We agree the trial court failed to conduct a sufficient Batson hearing, and we remand with directions.
[¶3] I. BACKGROUND
[¶4] On August 10, 2009, the State charged defendant by information with possession of a controlled substance (cocaine), a Class 4 felony (count I) (720 ILCS 570/402(c) (West 2008)); possession of cannabis, a Class C misdemeanor (count II) (720 ILCS 550/4(a) (West 2008)); and resisting or obstructing a peace officer, a Class A misdemeanor (count III) (720 ILCS 5/31-1(a) (West 2008)).
[¶5] Defendant's first jury trial ended in a mistrial. His second jury trial commenced on October 17, 2012. Because we remand for further proceedings on defendant's Batson challenges, we discuss only those facts related to the issue of alleged discrimination in the selection of the jury.
[¶6] A. Voir Dire
[¶7] The jury venire in this case consisted of 28 potential jurors, which the trial court divided into two groups of 14 venire members. No Batson issue was raised during consideration of the first panel of 14 potential jurors. In the second panel of potential jurors, the State used peremptory challenges on two African-American venire members and defendant raised respective Batson objections. The record establishes defendant is African-American.
[¶8] Defendant raised his first Batson objection when the State sought to use a peremptory challenge on Esther Bynum. The following colloquy occurred:
" [PROSECUTOR]: We'd ask to excuse Miss Bynum.
[DEFENSE COUNSEL]: Your Honor, at this time I would like to raise a [ Batson ] issue. Miss Bynum is the only black on this panel so far. She is a member of a cognizable racial group. The Prosecutor has used its [ sic ] peremptory challenge to remove that venire member from the jury, and there are no facts or other relevant circumstances that would raise an inference that this was anything other than for race.
THE COURT: Mr. [Prosecutor].
[PROSECUTOR]: That's actually--I don't think this is the correct procedure. You have to show a ...