No. 2--05--0050
______________________________________________________________________
________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________
________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 03--CF--1505
v. )
)
FRANCISCO ALVARADO, ) Honorable
) Grant S. Wegner,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________
________
JUSTICE O'MALLEY delivered the opinion of the court:
Following a jury trial in the circuit court of Kane County, defendant, Francisco
Alvarado, appeals his conviction of delivery of cocaine within 1,000 feet of a church (720
ILCS 570/401(d), 407(b)(2) (West 2002)). Defendant contends that, during jury selection,
the State impermissibly used a peremptory challenge to exclude a potential juror on the
basis of her race, in violation of the rule set forth in Batson v. Kentucky, 476 U.S. 79, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant also contends that there was insufficient
evidence to convict him of cocaine delivery beyond a reasonable doubt. We remand for
completion of the Batson hearing.
I. BACKGROUND
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On August 14, 2003, defendant was arrested. Before trial, defendant filed a motion
to suppress his statement to police, contending that he had requested an attorney and that
the statement was otherwise involuntary. Following a hearing at which the officers who
attended defendant's interview and defendant testified, the trial court denied defendant's
motion to suppress. The matter proceeded to a jury trial.
During the voir dire of the venire, the State questioned Norma Franco. Franco
indicated that, about 15 or 16 years ago, her older sister was involved with drugs and
sought help in ultimately overcoming her drug problem. Franco stated that she was not
close to her sister at that time and was not involved in her sister's rehabilitation and
treatment. Franco indicated that her sister had not had contact with the criminal justice
system as a result of her drug use. The State did not ask Franco individually any other
questions regarding her family and her ability to serve on defendant's jury. Following its
questioning of the venire panel, the State used one of its peremptory challenges to exclude
Franco. Defendant objected, and at a side bar, the following colloquy occurred:
"MR. ZUELKE [Defense Counsel]: I don't know, Judge, I think I would make
a challenge to that at this time. She is the only--to me appears to be the only
Mexican, of Mexican descent person we have in this entire venire. Her answers to
me didn't indicate anything different than any other answers, so I would make a
challenge to their challenge, your Honor.
MS. LUND [Assistant State's Attorney]: Judge, if I may. Thank you. The
Defendant has not shown a prima facie case for Batson. First of all, there is no
indication she is Hispanic.
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Second of all, she indicated to a question to Miss Kirch [assistant State's
Attorney] that she has a sister that was involved with drugs. That would be a major
concern for State.
Third, if you notice from her questionnaire, she has four children. They are
very small. We were concerned about her attention and her time in this matter,
considering she is young and has four children at home that would make it difficult to
sit on the case for a day and a half.
But most importantly the reason the State struck her had to do with issues
regarding a relative involved in narcotics. Nothing to do with her origins.
MR. ZUELKE: Miss Quinn [(prospective juror)] has two relatives with drug
problems and Mr. Malenke [(prospective juror)] has a friend that got 8 years for
selling drugs in another state.
MS. LUND: Obviously we're not here to challenge the other people. They
were kept on for independent reasons.
THE COURT: Under the circumstances I'm going to deny your request."
The State used other peremptory challenges to strike other potential jurors, but no further
Batson objections were raised.
Following the completion of voir dire and the selection of the jury, the trial court
revisited the Batson issue over Franco:
"I know we've been going way beyond the hour and a half, but the Batson
issue that you raised, I do want to make some additional comments that I didn't at
the time simply because of the timing.
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I think we all recognize as it relates to Batson that there is really a three-step
process in that regard. The first is for defendant to establish a prima facie case of
purposeful discrimination by showing that the totality of the relevant facts give rise to
an inference of discriminatory purpose. The defendant must show that he is a
member of a cognizable racial group being singled out for differential treatment.
The Defendant must demonstrate the following: That is he [is] a member of a
cognizable racial group; that the State exercised peremptory challenges to remove
venire members of the defendant's race; the facts and any relevant circumstance in
the case raise an inference that the State exercised peremptory challenges to
remove the prospective jurors based upon race.
And there are a number of relevant circumstances to consider in that regard:
Racial identity between the defendant and the excluded juror; pattern of strikes
against the cognizable group on a disproportionate basis; level of representation of
the juror compared to the rest of the jurors; questions propounded prior to
challenging the juror; the race of defendant, victim, and other witnesses.
And under those circumstances I again indicate that for purposes of this
record I don't believe the Defendant has made their [sic] prima facie showing." 1
1
We note that the trial court's recitation of the rules of law governing a Batson
challenge is not entirely accurate. For example, the trial court would apparently allow a
Batson challenge only where the defendant and the excluded juror share the same race.
The trial court's grasp of the nuances of Batson, however, is not at issue; in any event, the
trial court correctly set forth the three stages required to conduct a Batson hearing. We
note further that, while the trial court's statement of the law should not be accepted as
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Defendant then requested the trial court to preserve all of the juror profiles for the record
and the trial court appeared to agree to do so.
Following the trial, defendant was found guilty. Defendant's motion for a new trial
was denied and defendant was sentenced to a term of imprisonment of four years.
Defendant timely appeals.
II. ANALYSIS
On appeal, defendant raises two issues. First, defendant argues that the trial court
did not properly hold a Batson hearing regarding his objection to the State's use of a
peremptory challenge against juror Franco. Defendant contends that the trial court
improperly collapsed the procedure and erroneously determined that defendant had not
made a prima facie showing of racial discrimination. Alternatively, defendant argues that
the State's reasons for exercising its peremptory challenge against juror Franco were
pretextual, requiring that he receive a new trial. Defendant's second contention on appeal
is that, due to shoddy police work and record keeping, a reasonable doubt exists as to
accurate but only as what the trial court stated when conducting the Batson hearing at
issue here, our statement of the law below is accurate and governs our disposition here.
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whether he was the individual who sold the cocaine and, therefore, his conviction should be
reversed.
Defendant first contends that the trial court erred in its evaluation of his objection,
pursuant to Batson, to the State's use of a peremptory challenge against Franco to exclude
her from jury service in this case. According to defendant, Franco was the only Hispanic
person in the venire and, when comparing her responses to voir dire questioning with those
of others whom the State did not seek to exclude, the inference arises that the State struck
Franco because of her race. We first review the principles governing a Batson inquiry
before addressing defendant's arguments in detail.
Batson articulated a three-step process to evaluate a claim that the State exercised
its peremptory challenges in a discriminatory manner. Batson, 476 U.S. at 96-98, 90 L. Ed.
2d at 87-89, 108 S. Ct. at 1723-24; People v. Williams, 173 Ill. 2d 48, 70 (1996).
"First, the defendant must establish a prima facie case of purposeful discrimination
in the selection of the jury. Once the defendant establishes a prima facie case, the
burden shifts to the State to articulate a race-neutral reason for challenging each of
the venirepersons in question. Finally, the trial judge must consider those
explanations and determine whether the defendant has met his burden of
establishing purposeful discrimination." Williams, 173 Ill. 2d at 70-71.
A defendant makes a prima facie showing of discrimination under Batson by
demonstrating that the relevant circumstances in the case raise an inference that the
prosecutor exercised peremptory challenges to remove potential jurors based on their race.
Williams, 173 Ill. 2d at 71. To assist the court in determining whether a prima facie case of
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discrimination in jury selection has been established, the following factors should be
considered:
"(1) racial identity between the defendant and the excluded venirepersons; (2) a
pattern of strikes against [a cognizable racial group of] venirepersons; (3) a
disproportionate use of peremptory challenges against [a cognizable racial group of]
venirepersons; (4) the level of [the cognizable racial group's] representation in the
venire as compared to the jury; (5) the prosecutor's questions and statements during
voir dire examination and while exercising peremptory challenges; (6) whether the
excluded [venirepersons of a cognizable racial group] were a heterogeneous group
sharing race as their only common characteristic; and (7) the race of the defendant,
victim, and witnesses." Williams, 173 Ill. 2d at 71.
These factors, however, are not all-inclusive. People v. Davis, 345 Ill. App. 3d 901, 903
(2004). The trial court's determination on whether the defendant has established a prima
facie case will not be disturbed unless it is against the manifest weight of the evidence.
Williams, 173 Ill. 2d at 71. With these principles in mind, we turn to the circumstances
confronting the trial court here.
The State questioned the panel, including Franco, during voir dire. When the State
concluded its questioning, the prosecutor said, "Judge, with thanks, the People would
excuse Miss Franco." Defendant made his Batson objection, arguing that Franco was the
only Hispanic person in the venire and that her answers to questioning were not
significantly different from those of other, non-Hispanic venirepersons who were accepted
by the State. The State disagreed, first arguing that defendant had not made a prima facie
case because there was no indication that Franco was Hispanic, and then pointing out that
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Franco had a sister who had been involved with drugs and that she had small children at
home. The court then immediately denied defendant's Batson objection. Later, after the
jury had been selected, the trial court stated that it wished to supplement the record on the
Batson objection and specifically stated that it denied defendant's objection because
defendant had not established a prima facie case of purposeful discrimination.
Defendant first contends that the trial court erred in the manner in which it held the
Batson hearing. According to defendant, it was unclear as to what stage the hearing was in
or what basis the trial court used to justify its ruling. From this, defendant concludes that
the trial court did not properly hold a Batson hearing, and he requests that the judgment be
reversed and the case remanded for such a hearing. We disagree with defendant's
premise.
We are cognizant of the exigencies facing a trial court in seating a jury. Here,
defendant raised an objection that the State excluded a prospective juror on the basis of
race. The State disagreed and the trial court ruled. We find, on the record before us, that
the trial court was clearly in the first stage of the three-part Batson inquiry. This is
confirmed because the trial court supplemented the record and explicitly stated that
defendant had not made a prima facie showing of purposeful racial discrimination on the
part of the State. Had the trial court not supplemented the record, we would have had a
more difficult time in determining where in the Batson process the trial court was when it
ruled. This is why our supreme court has stressed the importance of conducting an orderly
and clear hearing when confronted with a Batson issue. See, e.g., People v. Garrett, 139
Ill. 2d 189, 200 (1990) (Batson challenge must be evaluated in methodical manner);
People v. Hope, 137 Ill. 2d 430, 456 (1990), vacated, 501 U.S. 1202, 115 L. Ed. 2d 966,
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111 S. Ct. 2792 (1991), modified, 147 Ill. 2d 315 (1992) (Batson hearing should proceed
methodically and step-by-step). Nevertheless, based on the record before us, we hold that
the trial court ruled that defendant had not made out a prima facie case of racial
discrimination in the exclusion of Franco and then terminated the Batson hearing.
Defendant next challenges the propriety of the trial court's determination on whether
defendant made a prima facie case. The State points out that the record is devoid of any
indication of Franco's race. According to the State, this failure in the record must prohibit
us from reviewing the trial court's determination further, effectively resulting in defendant
waiving his claim. (The State supports its argument with a citation to People v. Harris, 129
Ill. 2d 123, 171-72 (1989) (holding that a challenge to the State's utilization of a peremptory
challenge may not be maintained on appeal unless there is evidence in the record
establishing the excluded juror's race).) Contrary to the State's claim, we find there to be
sufficient evidence in the record to evaluate defendant's claim that the trial court's
determination that he did not make a prima facie case was erroneous.
Here, defense counsel objected to the State's use of a peremptory challenge to
exclude Franco, because she "appeared" to defense counsel to be the only Hispanic
member of the venire. The State disputed whether she was Hispanic. Defense counsel
requested that the juror information cards be preserved in the record and the trial court
agreed to do so. The juror information was not preserved in the trial court. Nevertheless,
we hold that there is sufficient information in the record to support that defendant
demonstrated that Franco was Hispanic.
First, we note that "Franco" is an Hispanic surname, a fact conceded by the State.
While this is not conclusive, it raises an inference. Second, defense counsel, for whatever
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reason, stated his belief that Franco appeared to him to be of Mexican descent. This fact
also supports that Franco is Hispanic. Third, defendant requested that the juror information
cards be preserved and the trial court agreed. In our opinion, it would be improper to hold
the destruction or loss of the juror information cards against defendant where he had taken
appropriate steps to preserve the record, and the record, through no fault or action of
defendant, was not actually preserved. (Ordinarily, the failure to provide a complete record
on appeal is construed against the appellant (People v. Pertz, 242 Ill. App. 3d 864, 905
(1993)), but where the incomplete record occurs through no fault of the appellant and
fundamentally prejudices his ability to make his argument on appeal, it will not be held
against him (People v. Ramos, 295 Ill. App. 3d 522, 526 (1998)).) We note that the State
does not deny that the juror information cards would have had information regarding each
juror's race and that they would have resolved the issue one way or the other. Defendant
impliedly made that argument at trial by seeking the preservation of the juror information
cards. Based on this reasoning, we conclude that defendant made a sufficient showing that
Franco is Hispanic, for purposes of his argument as to establishing a prima facie case of
racial discrimination.
This, however, is merely the first step in defendant's case. He has demonstrated
that Franco is Hispanic. We now consider the seven factors regarding the prima facie
showing identified above. The first factor weighs in defendant's favor: he and Franco are
both Hispanic. This factor, while relevant to the prima facie inquiry, is not dispositive.
Williams, 173 Ill. 2d at 72.
The next factor is whether the State's use of peremptories established a pattern of
strikes against Hispanics. We conclude that it does not. Franco was apparently the only
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Hispanic in the venire; one strike does not establish a pattern. Thus, this factor affords little
weight in the determination of the prima facie inquiry. See Davis, 345 Ill. App. 3d at 909-
10. However, the fact that the State struck the only Hispanic in the venire is nevertheless a
relevant factor supporting a prima facie case. See People v. Jones, 177 Ill. App. 3d 663,
669 (1988).
Likewise, the next two factors, whether the State disproportionately struck Hispanics
and the level of Hispanic representation in the venire compared to the jury, afford little
weight to the inquiry. It is not particularly meaningful to attempt to discern disproportionality
on the basis of a single peremptory challenge. Further, because Franco was the sole
Hispanic in the venire, the levels of representation in the venire and the jury are
unenlightening.
The next factor concerns the prosecutor's questions and statements during voir dire.
The attorneys were allowed to do much of the questioning in voir dire. The prosecutor
verbalized nothing on the record to indicate racial animus. This factor weighs against a
finding of purposeful racial discrimination.
The next factor is whether the excluded jurors shared only race in common. As
Franco constitutes a group of one, this factor is of little weight. Relatedly, however, an
important factor often considered at this point in the context of establishing a prima facie
case of discrimination is whether the excluded juror shared common characteristics with
other, nonminority jurors who were not challenged. See Davis, 345 Ill. App. 3d at 908
(exclusion of juror of same race as defendant and who shared common characteristics with
accepted nonminority jurors raises an inference that the exclusion was due to race). During
voir dire, the State emphasized that Franco's sister had a drug problem and offered this as
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a distinguishing factor from other jurors it had accepted. However, six other venirepersons
also had relatives or friends who were involved with drugs in their pasts, yet they were not
challenged. Juror Gordon had a brother involved with drugs who underwent rehabilitation.
Like Franco, Gordon was not close with his brother and stated he was able to put aside his
brother's situation. Juror Malenke had a friend who sold drugs and who was sentenced to
prison as a result. Malenke admitted that he had known his friend was selling drugs. The
State did not challenge Malenke. Juror Quinn had a niece and a cousin, both of whom she
was very close to, who were involved with drugs beginning 10 to 15 years before the trial.
Quinn revealed that one was still struggling through rehabilitation at the time of trial, yet the
State accepted Quinn without challenge. Juror Moser had a son who was arrested for
possession of cannabis. Juror Condon had been convicted of drunk driving and had been
through mandatory evaluation and counseling as a result. Juror DeTolve participated in a
12-step program and knew a number of people who had serious drug problems. Further,
DeTolve admitted that he had purchased illegal drugs. All three venirepersons were
accepted by the State. Thus, Franco shared important characteristics with other
venirepersons who were deemed acceptable. This factor weighs strongly in favor of
establishing a prima facie case. See Davis, 345 Ill. App. 3d at 908.
The final factor, the racial identity of the defendant, victim, and witnesses, is of little
weight here. There was no victim as such, and defendant and most of the witnesses were
Hispanic, but no inference toward or against racial discrimination arises from these facts.
In sum, therefore, we hold that the trial court erred in determining that defendant did
not establish a prima facie case of racial discrimination in Franco's exclusion. Our
examination of the record and the relevant circumstances demonstrates that defendant was
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Hispanic and yet the State excluded the only Hispanic in the venire, and that this juror
shared characteristics with other, accepted venire members. Based on this review, we hold
that the trial court's determination that defendant failed to make a prima facie showing of
racial discrimination under Batson was against the manifest weight of the evidence.
The State, for its part, argues that there is no evidence in the record to establish
Franco's race. We have already determined above that there is sufficient evidence to
demonstrate, for the purposes of the prima facie showing, that Franco is Hispanic. First,
her name is, as the State conceded, a common Hispanic surname. Second, defendant
properly and timely attempted to preserve the record via the juror information cards. The
exclusion of the juror information cards from the record was not defendant's fault and
cannot be held against defendant. Ramos, 295 Ill. App. 3d at 526. Moreover, the State
does not dispute that the juror information cards would resolve the issue. Based on this
and contrary to the State's position, we conclude that there is a sufficient record to establish
that Franco is Hispanic.
The State also argues that, considering the seven factors, defendant failed to make
out a prima facie case of discrimination in the State's utilization of its peremptory
challenges. The State, however, fails to provide any meaningful argument on that point.
Instead, it correctly notes that the factors we identified as having little weight indeed have
little weight in the analysis. The State argues that the racial identity factor cuts against
defendant because the record does not disclose the race of Franco. We need not address
that point further, other than to note that the State's analysis proceeds from an erroneous
starting point. The State wholly ignores whether Franco shared common characteristics
with other, nonminority venirepersons whom the State did not peremptorily challenge.
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Instead, the State asserts that defense counsel did not raise the seven factors in
making his argument. We disagree. Defense counsel argued that Franco shared a racial
identity with defendant, and noted that other, nonminority jurors had the same
characteristics as Franco, but were not challenged. Thus, to the extent that the State is
suggesting that defendant has waived this argument, we find that the record flatly
contradicts the State's argument.
Based on this, we reject the State's arguments. Defendant sufficiently demonstrated
that Franco is Hispanic and further sufficiently demonstrated a prima facie case that the
State used its peremptory challenges to exclude Franco on the basis of race. Accordingly,
we must remand the case to allow the State to proceed to step two of the Batson analysis--
to advance a race-neutral explanation as to why it exercised the challenge. Following this,
the trial court will proceed to step three, determining whether the reason is pretextual. See
Davis, 345 Ill. App. 3d at 911 (remedy for erroneous prima facie determination is remand to
allow remainder of Batson hearing to be held). Based on our resolution of this issue, we
need not consider defendant's alternative argument that the trial court erroneously
determined that the State's reasons for striking Franco were not pretextual.
III. CONCLUSION
Accordingly, we remand this cause to the circuit court of Kane County and direct it to
hold the remaining stages of the Batson hearing. If the circuit court determines that the
peremptory challenge against Franco is not a Batson violation, then defendant's conviction
and sentence shall stand. If, however, the circuit court determines that the peremptory
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challenge against Franco constitutes a Batson violation, then defendant's conviction shall
be vacated and the circuit court shall order a new trial.
Remanded with directions.
BOWMAN and GILLERAN JOHNSON, JJ., concur.
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People v. Alvarado
Court: Appellate Court of Illinois
Date filed: 2006-05-05
Citations: 365 Ill. App. 3d 216
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