People v. Duffie

2022 IL App (2d) 210281
No. 2-21-0281
Opinion filed August 4, 2022
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-714
)
RAHSHAN D. DUFFIE, ) Honorable
) Robert A. Wilbrandt Jr.,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of McHenry County, defendant, Rahshan D.

Duffie, was convicted of escape (730 ILCS 5/5-8A-4.1(a) (West 2020)) based on evidence that he

violated the terms of his pretrial release in the underlying prosecution, case No. 20-CF-243, by

removing an electronic monitoring device from his ankle. Defendant argues that we must reverse

his conviction because the State failed to prove that he received notice that his failure to comply

with the conditions of the electronic monitoring program could lead to an escape prosecution. We

reject that argument but accept defendant’s alternative contention that, during jury selection, the

trial court failed to conduct proper proceedings under Batson v. Kentucky, 476 U.S. 79 (1986). We
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enter a limited remand for compliance with Batson, consistent with People v. Trejo, 2021 IL App

(2d) 190424-B.

¶2 I. BACKGROUND

¶3 Defendant was charged by indictment with a single count each of escape and criminal

damage to government supported property (720 ILCS 5/21-1.01(a)(1) (West 2020)). As noted, the

escape charge was based on his removing an electronic monitoring device from his ankle. The

damage-to-government-supported-property charge was based on the damage caused when

defendant unlawfully removed the device.

¶4 During jury selection, the prosecutor questioned prospective juror Travis Wilbert, a retired

national bank examiner, about his former occupation. Wilbert indicated that his position entailed

knowledge and application of banking laws. Asked whether he would describe himself as “more

of an analytical person or common sense person,” Wilbert responded, “I’m both.” Wilbert

elaborated:

“[W]ithin my position, I had to use common sense as well with the laws there can be some

gray areas, and working with clients, so you have to use common sense, but then also have

to be analytical to identify where a violation of the law has occurred.”

¶5 The prosecutor asked whether there were times when Wilbert “had to take all these

different factors into play to determine whether a violation occurred.” Wilbert responded:

“Definitely had to take a lot of things into play. I mean ***, the violation of law

was there. What was—you know, did you intentionally violate the law or was it over, you

know, something you overlooked that caused the violation of law; so those type of, you

know, reasoning, thought process entered into things.”

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¶6 The prosecutor exercised a peremptory challenge against Wilbert. The trial court

interjected, “You need a Batson reason on Mr. Wilbert.” The prosecutor responded that her

concerns arose from Wilbert’s answers to questions about the role of the law in his former

occupation of bank examiner. The prosecutor explained:

“Judge, his answer to the question the law he applied in bank cases, where someone

could commit a technical violation, but he said that like even if it’s a technical violation,

he has to look at all the surrounding circumstances and that causes me concern because we

want somebody who is going to follow the law exactly as it is, not consider, you know,

well, it wasn’t that big of a violation.

And I think that the factors that he applied in his job are very different from what

we apply here. He is familiar with the bank law and federal and state law, so that was—

that was the concern that we had and the reason that we would be asking to strike him.”

¶7 Defense counsel objected to the challenge, stating, “[T]he [S]tate doesn’t like [Wilbert]

because they think he will be favorable to my client and I don’t think it’s for good reasons. I think

it’s—the reasons are suspicious.” Defense counsel added that Wilbert was “the only person of

color in this courtroom.” The trial court allowed the State’s peremptory challenge, stating, “The

court believes that the [S]tate has a reason that would comply with Batson.”

¶8 The evidence at trial established that in March 2020 defendant was charged with theft and

was released on bond but was ordered to wear an electronic monitoring device attached by a strap

to his ankle. Before the device was placed on his ankle, defendant signed a document titled

“McHenry County Court Services Electronic Monitoring Agreement” (Agreement). By signing,

defendant agreed to wear the electronic monitoring device 24 hours a day and remain home during

his 11:30 p.m. to 8 a.m. curfew. He also acknowledged that physical evidence that the device had

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been tampered with or removed would constitute prima facie evidence that he violated the

Agreement and might result in a warrant for his arrest. The Agreement stated that the failure to

return the device would result in a criminal charge of theft of property worth over $300. The

Agreement did not specify any other criminal consequences of noncompliance. On June 3, 2020,

the monitoring device issued a “strap tamper” alert. Defendant missed a court appearance, and a

warrant was issued for his arrest. He was taken into custody in September 2020. At some point,

defendant informed the authorities that the monitoring device was in his girlfriend’s possession.

She returned the monitoring device to the authorities. Its ankle strap had been cut. There was no

evidence that defendant was ever given notice that his failure to comply with the conditions of the

electronic monitoring program could result in an escape charge.

¶9 After the State rested, defense counsel moved for a “directed finding” on the ground that

defendant had not received the required notice under section 5-8A-4(H) of the Electronic

Monitoring and Home Detention Law (Electronic Monitoring Law) (730 ILCS 5/5-8A-4(H) (West

2020)) that failure to comply with the conditions of his release under the Electronic Monitoring

Law could result in a prosecution for escape. The trial court denied the motion, reasoning that

receipt of such notice was not an element of the offense. Defendant unsuccessfully objected to the

State’s proposed jury instructions that did not indicate that the State was required to prove that

defendant received section 5-8A-4(H) notice.

¶ 10 The jury found defendant guilty of both escape and criminal damage to government

supported property. In his posttrial motion, defendant again argued that his conviction could not

stand absent proof of section 5-8A-4(H) notice. The trial court denied the motion. The court

merged the criminal-damage-to-government-supported-property conviction into the escape

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conviction under the one-act, one-crime rule. The court sentenced defendant to 4½ years in prison.

This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 Defendant first argues that we must reverse his conviction because he was not given the

required notice under the Electronic Monitoring Law that violating the conditions of his electronic

monitoring program could result in his prosecution for escape. Defendant was charged with escape

pursuant to section 5-8A-4.1(a) of the Electronic Monitoring Law (id. § 5-8A-4.1(a)), which

provides, in pertinent part:

Ҥ 5-8A-4.1. Escape; failure to comply with a condition of the electronic

monitoring or home detention program.

(a) A person charged with or convicted of a felony *** conditionally released from

the supervising authority through an electronic monitoring or home detention program,

who knowingly violates a condition of the electronic monitoring or home detention

program *** is guilty of a Class 3 felony.”

¶ 13 During the relevant time frame, section 5-8A-4(H) of the Electronic Monitoring Law (id.

§ 5-8A-4(H)) provided, in pertinent part:

“The supervising authority may promulgate rules that prescribe reasonable guidelines

under which an electronic monitoring and home detention program shall operate. When

using electronic monitoring for home detention these rules shall include but not be limited

to the following:

***

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(H) Notice to the participant that violation of the order for home detention may subject

the participant to prosecution for the crime of escape as described in Section 5-8A-4.1.”

(Emphasis added.)

¶ 14 Defendant argues that the State failed to meet its burden of proof because it presented no

evidence that he received the notice section 5-8A-4(H) requires. Defendant claims that the trial

court misinterpreted the law by ruling that receipt of section 5-8A-4(H) notice is not a prerequisite

to a prosecution under section 5-8A-4.1.

¶ 15 The pertinent facts are not in dispute. Defendant acknowledges that, by removing the

monitoring device, he violated a condition of his pretrial release. Likewise, there is no dispute that

he was not given the notice required by section 5-8A-4(H). The sole question is whether receipt of

such notice is an element of the offense of escape as defined in section 5-8A-4.1 of the Electronic

Monitoring Law or a prerequisite to prosecution. This is a matter of statutory construction. Our

supreme court recently observed:

“The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s

intent. [Citation.] The most reliable indicator of legislative intent is the language of the

statute, given its plain and ordinary meaning. [Citation.] It is improper for a court to depart

from the plain statutory language by reading into the statute exceptions, limitations, or

conditions that conflict with the clearly expressed legislative intent. [Citation.] Where

statutory language is clear and unambiguous, it will be given effect without resort to other

aids of construction. [Citation.] If the meaning of an enactment is unclear from the statutory

language, the court may consider the purpose behind the law and the evils the law was

designed to remedy. [Citation.] The statute should be read as a whole and construed so as

to give effect to every word, clause, and sentence; we must not read a statute so as to render

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any part superfluous or meaningless. [Citation.] Words and phrases must be interpreted in

light of other relevant provisions of the statute and must not be construed in isolation.

[Citation.] We have an obligation to construe statutes in a manner that will avoid absurd,

unreasonable, or unjust results that the legislature could not have intended. [Citation.]”

Palm v. Holocker, 2018 IL 123152, ¶ 21.

¶ 16 Nothing in the plain language of the definition of escape in section 5-8A-4.1 of the

Electronic Monitoring Law suggests that receipt of notice is an element of the offense or a

prerequisite to prosecution. Defendant argues, however, that section 5-8-4.1 must be read in

conjunction with section 5-8A-4(H). He contends that, because section 5-8A-4(H) provided that

the rules governing an electronic monitoring and home detention program “shall” include notice

that a violation might lead to a prosecution for escape, the notice requirement was mandatory for

a prosecution. Defendant further argues that, if receipt of section 5-8A-4(H) notice is not an

element of the offense, the notice requirement is superfluous. We consider these arguments in

reverse order.

¶ 17 We disagree with defendant’s argument that the notice requirement would be superfluous

unless receipt of notice is an element of the offense of escape. Such a view of the notice

requirement presumes that it was intended for the benefit of criminal defendants. However, by

promoting compliance with the conditions of electronic monitoring, the notice requirement

enhances the effectiveness of the electronic monitoring program and promotes public safety. The

notice requirement serves this salutary function whether or not receipt of notice is an element of

the offense of escape or a prerequisite to prosecution. On the other hand, defendant knew that he

was not permitted to remove the monitoring device, and he agreed not to do so. Defendant’s

argument implies that the General Assembly intended to provide him (and other defendants

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similarly situated) notice of the possible consequences of what he knew to be a wrongful act so

that he could make an informed decision whether to violate the law. Absent a clearer expression

in the language of the statute, we are unwilling to assume that the General Assembly intended such

a result.

¶ 18 This conclusion leads us to reject defendant’s argument that, because the notice

requirement is mandatory, failure to comply requires reversal of his conviction. “Mandatory” has

two different senses, depending on whether it is used in contradistinction to “permissive” or in

contradistinction to “directory.” See People v. Delvillar, 235 Ill. 2d 507, 514 (2009). When used

in contradistinction to “permissive,” “mandatory refers to an obligatory duty which a governmental

entity is required to perform.” (Internal quotation marks omitted.) Id. “The term permissive refers

to a discretionary power, which a governmental entity may exercise or not as it chooses.” (Internal

quotation marks omitted.) Id.

¶ 19 The second distinction, which governs here, is between “mandatory” and “directory.” In

Delvillar, our supreme court explained that “statutes are mandatory if the intent of the legislature

dictates a particular consequence for failure to comply with the provision. [Citation.] In the absence

of such intent the statute is directory and no particular consequence flows from noncompliance.”

Id. at 514-15. The Delvillar court added:

“With respect to the mandatory/directory dichotomy, we presume that language issuing a

procedural command to a government official indicates an intent that the statute is

directory. [Citation.] This presumption is overcome under either of two conditions. A

provision is mandatory under this dichotomy when there is negative language prohibiting

further action in the case of noncompliance or when the right the provision is designed to

protect would generally be injured under a directory reading. [Citation.]” Id. at 517.

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¶ 20 In Delvillar, the defendant, a resident alien, contended that the trial court improperly

accepted his guilty plea because the court did not first admonish him, as required by statute, that

his conviction could affect his immigration status. In determining that the statute was directory

rather than mandatory, the Delvillar court first noted the absence of language preventing the court

from accepting a guilty plea in the absence of a proper admonition. Id. at 517-18. The Delvillar

court also concluded that failure to give the statutory admonition would not generally impair the

right the statute was designed to protect, to wit, the right to intelligently waive a jury trial and plead

guilty. Id. at 518-19.

¶ 21 Here, as in Delvillar, the statutory provisions in question contain no language prohibiting

a prosecution for escape in the absence of section 5-8A-4(H) notice. Also, we are not persuaded

that the failure to give notice will generally result in violations of the conditions of release on

electronic monitoring. Furthermore, as discussed above, defendant was fully aware of, and agreed

to, the conditions of release on electronic monitoring. We are not persuaded that the notice

requirement was designed to protect defendant from the consequences of his knowing misconduct.

Defendant has only himself to blame for his escape conviction, even if it is a more severe outcome

than he might have anticipated. Finally, as discussed, to the extent that section 5-8A-4(H) notice

encourages compliance with the conditions of release, it benefits the public. To the extent that

failure to give notice is injurious to the public, immunizing a defendant from prosecution for escape

would only exacerbate the injury. We, therefore, conclude that the State met its burden of proof

without showing that defendant received section 5-8A-4(H) notice.

¶ 22 We next consider defendant’s argument that the trial court failed to conduct proper

proceedings under Batson. In Batson, the United States Supreme Court held that the equal

protection clause of the fourteenth amendment (U.S. Const., amend. XIV) forbids prosecutors from

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exercising peremptory challenges to potential jurors solely on account of their race. Batson, 476

U.S. at 89. Batson developed a three-step process for determining whether a peremptory challenge

violates that principle. “First, the defendant must make a prima facie showing that the prosecutor

has exercised peremptory challenges on the basis of race.” People v. Davis, 231 Ill. 2d 349, 360

(2008). “To determine at the first step whether racial bias motivated a prosecutor’s decision to

remove a potential juror, a court must consider the totality of the relevant facts and all relevant

circumstances surrounding the peremptory strike to see if they give rise to a discriminatory

purpose.” (Internal quotation marks omitted.) Id. Relevant factors in determining the existence of

a prima facie case include

“(1) the racial identity between the party exercising the peremptory challenge and the

excluded venirepersons; (2) a pattern of strikes against African-Americans on the venire;

(3) a disproportionate use of peremptory challenges against African-Americans; (4) the

level of African-American representation in the venire compared to the jury; (5) the

prosecutor’s questions and statements of the challenging party during voir dire

examination and while exercising peremptory challenges; (6) whether the excluded

African-American venirepersons were a heterogeneous group sharing race as their only

common characteristic; and (7) the race of the defendant, victim and witnesses.” Id. at 362.

See also People v. Rivera, 221 Ill. 2d 481, 501 (2006).

¶ 23 Once a prima facie case has been made, the matter proceeds to the second step, at which

the State must provide a race-neutral explanation for its decision to challenge the prospective juror

and the defendant has the opportunity to rebut the State’s explanation as pretextual. Davis, 231 Ill.

2d at 362-63. In the third step, “the trial court must determine whether the defendant has shown

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purposeful discrimination in light of the parties’ submissions.” Id. at 363. The Davis court

described the third step as follows:

“Step three of the Batson inquiry involves an evaluation of the prosecutor’s

credibility, and the best evidence of discriminatory intent will often be the demeanor of the

attorney who made the peremptory challenge. [Citation.] Additionally, as is the case here,

a race-neutral reason for a challenge often invokes a juror’s demeanor (e.g., nervousness,

inattention, the way words are emphasized to express differing meanings), making the trial

court’s firsthand observations of crucial importance. In such situations, the trial court must

evaluate not only whether the prosecutor’s demeanor belies discriminatory intent, but also

whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike

attributed to the juror by the prosecutor. [Citation.]” Id. at 363-64.

¶ 24 Where the defendant objects under Batson to a peremptory challenge by the State, the

defendant bears the burden of making a prima facie case and preserving the record. Id. at 365.

However, where, as in this case, the trial court raises a Batson issue sua sponte, that responsibility

falls on the trial court. Id. at 366. “[T]he trial court must make an adequate record consisting of all

relevant facts, factual findings, and articulated bases for both its finding of a prima facie case and

for its ultimate determination at the third stage of the Batson procedure.” Rivera, 221 Ill. 2d at 515.

Moreover,

“when the trial court acts sua sponte to conduct a Batson hearing, a bifurcated standard of

review applies: the court’s findings of fact, including any specific observations of record

bearing on demeanor or credibility, will be accorded deference; however, the ultimate legal

determination based on those findings is one that we make de novo.” Davis, 231 Ill. 2d at

364.

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¶ 25 In Davis, the trial court sua sponte raised the issue of whether the State improperly used a

peremptory challenge against an African American prospective juror, Robert Hicks. The State

replied that it exercised the challenge because Hicks equivocated when asked if he could be a fair

juror. Defense counsel objected, noting that other jurors had answered similarly to Hicks but the

State did not challenge them. The trial court ultimately determined that the State provided a race-

neutral reason for challenging Hicks. On appeal, the defendant argued that the State’s articulated

reason for challenging Hicks was pretextual, as the State had accepted other prospective jurors

whose answers were also equivocal. The supreme court remanded for a new Batson hearing. The

court observed that, though the trial court sua sponte raised the Batson issue, the court “did not

make any findings with respect to the credibility of the prosecutor, or with respect to the demeanor

of Hicks and the accepted jurors who allegedly equivocated in their answers.” Id. at 368. Although

the defendant had not identified those jurors during the Batson proceedings, the Davis court noted

that “it is also true that the trial court did not ask defense counsel to elaborate or provide any more

detail as to his argument on pretext.” Id. The Davis court reiterated that “the judge had the

obligation to make a complete record for our review in this setting where he was essentially acting

sua sponte.” Id. The court concluded that what the record did show was that “the trial court

collapsed the three-step Batson procedure into one step that looked only at whether the State could

offer a race-neutral explanation for the strike.” Id.

¶ 26 Defendant argues that the trial court here failed to follow the three-step process outlined in

Batson and failed to adequately develop the record for review. Defendant acknowledges that,

because he did not raise the issue in his posttrial motion, he failed to preserve it for appellate

review. See, e.g., People v. Enoch, 122 Ill. 2d 176, 187 (1988) (failure to include an issue in a

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posttrial motion results in forfeiture of that issue on appeal). However, defendant argues that the

issue is reviewable under the plain error rule. The plain error rule has been explained as follows:

“[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when

(1) a clear or obvious error occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill.

2d 551, 565 (2007).

Quoting People v. Lann, 261 Ill. App. 3d 456, 467 (1994), defendant contends that, “[i]n

[defendant’s] case, the second prong applies because ‘discrimination in selecting a jury

disgracefully impugns the integrity of the judicial process.’ ” The State responds that the first step

in the plain error analysis is to determine whether error occurred at all. See People v. Walker, 232

Ill. 2d 113, 124 (2009). According to the State, no error occurred and thus there was no plain error.

For the reasons set forth below, we disagree with the State.

¶ 27 Here, as in Davis, the trial court raised the Batson issue sua sponte. Accordingly, the court

was required to make an adequate record of the bases of its finding of a prima facie case. Here,

the trial court not only failed to make an adequate record, but it also never even expressly found

that a prima facie case existed. Although the State infers that the trial court found a prima facie

case, that inference is insufficient to satisfy the requirements of Davis, which requires the trial

court to make an adequate record of its finding of a prima facie case.

¶ 28 Regarding the second step of the Batson process, the State contends that it offered a race-

neutral reason for challenging Wilbert. When the trial court asked the State to provide such a

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reason, the State said it was concerned that, in his work as a bank examiner, Wilbert used common

sense and discretion in determining when to enforce banking laws. The State wanted jurors who

would apply the law exactly as instructed. This reason was clearly race-neutral. As the Davis court

explained, “a ‘neutral explanation’ means any ‘explanation based on something other than the race

of the juror.’ ” Davis, 231 Ill. 2d at 367 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)

(plurality opinion)). But for a peremptory challenge to survive a Batson objection, the trial court

must find, at the third step of the Batson process, that the State is not guilty of purposeful

discrimination, which depends on whether the proffered reason for the peremptory challenge was

pretextual. Moreover, as previously explained, Davis requires the trial court to make a record of

its findings when (as here) it acts sua sponte. The court here simply declared that it believed “that

the [S]tate has a reason that would comply with Batson.” It is not altogether clear whether this was

a finding of no purposeful discrimination or simply a finding that the State offered a facially race-

neutral reason for the peremptory challenge. Even assuming, for the sake of argument, that the

trial court made the appropriate finding, the record is inadequate because, as in Davis, the trial

court did not make a record sufficient to facilitate a meaningful review of that finding. Notably, as

in Davis, the trial court did not make any findings as to the credibility of the prosecutor or the

demeanor of the challenged juror, which are principal considerations in determining whether the

prosecutor engaged in purposeful discrimination.

¶ 29 We conclude that a remand for a proper Batson hearing is necessary. We retain jurisdiction

to review the trial court’s decision on remand, which it shall support with appropriate findings of

fact and conclusions of law. The trial court shall hold a hearing within 30 days of the filing of this

opinion. Following the hearing, the trial court shall, within 60 days, file its findings and

conclusions with the clerk of this court, accompanied by the record of the proceedings on remand.

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Then, the parties shall have the opportunity to submit supplemental briefs to this court if they so

choose.

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we remand this cause to the circuit court of McHenry County for

further proceedings consistent with this opinion.

¶ 32 Cause remanded.

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People v. Duffie, 2022 IL App (2d) 210281

Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 20-CF-
714; the Hon. Robert A. Wilbrandt Jr., Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Ann Fick, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:

Attorneys Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
for Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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