People v. Primm

PRESIDING JUSTICE CAMPBELL,

dissenting in part and specially concurring in part:

The majority opinion in this case reaches the correct result as to all the issues presented, except for the Batson issue. The majority opinion’s application of the waiver doctrine is questionable in one respect. Following People v. Mitchell, 152 Ill. 2d 274, 285, 604 N.E.2d 877, 884 (1992), and People v. Whaley, 184 Ill. App. 3d 459, 465, 540 N.E.2d 421, 425 (1989), the majority correctly concludes that it must address the merits of the Batson claim. Yet the majority later rules as a matter of first impression that defendant waived his claim regarding Betty Cameron for failure to pursue it beyond his initial objection during voir dire.

Our supreme court has held that discrimination during jury selection raises such serious questions as to the fairness of the proceedings conducted in the courtroom that a reviewing court should determine whether the alleged error constitutes plain error. People v. Blackwell, 164 Ill. 2d 67, 74-75, 646 N.E.2d 610, 614 (1995). In Blackwell, the supreme court ruled that the defendant showed plain error where the State’s pattern of strikes and the statements of the prosecutor established a prima facie case of gender discrimination. 164 Ill. 2d at 76, 646 N.E.2d at 614.

In this appeal, defendant does not claim there was a prima facie case, arguing instead that once the trial court decides the question of discrimination, the question of the existence of a prima facie case becomes academic. People v. Hudson, 157 Ill. 2d 401, 427, 626 N.E.2d 161, 171-72 (1993). This court has applied the rule, even in the context of a plain error analysis, that “[o]nce the State provides race-neutral explanations for its peremptory challenges and the court rules on the existence of purposeful discrimination, the preliminary question of whether defendant established a prima facie case becomes moot.” People v. Williams, 252 Ill. App. 3d 635, 641, 625 N.E.2d 144, 148 (1993). In this case, unlike Williams, the State did not provide any explanation for one of the peremptory challenges, but it did so with respect to the other challenges. The trial court ruled on the ultimate issue of purposeful discrimination. Accordingly, the analysis turns to focus on the reasons proffered by the State for its peremptory challenges and the trial court’s ultimate ruling.

In this case, the State offered no explanation for its exclusion of venireperson Cameron. The trial court did not ask the State to provide an explanation. The majority correctly notes that there is a dearth of Illinois case law addressing this type of situation. Nevertheless, it is well established in the Batson context that the trial court must focus on the reasons actually proffered by the State and cannot presume that an unarticulated, race-neutral explanation exists. E.g., People v. Harris, 129 Ill. 2d 123, 184, 544 N.E.2d 357, 384 (1989). Accordingly, as the majority acknowledges, this court has held that the trial court is required to elicit explanations from the State for each excluded venireperson. People v. Crockett, 314 Ill. App. 3d 389, 396-98, 731 N.E.2d 823, 57-58 (2000).

The majority asserts that it is “considering the trial court’s obligations in an entirely different context.” 319 Ill. App. 3d at 423. In Crockett, the trial judge offered its own explanation for a peremptory challenge. However, the trial court’s improper failure to elicit an explanation from the State remains improper, regardless of whether the trial court takes the additional improper step of offering its own explanation.

Moreover, in a criminal prosecution, the prosecutor is the representative of all the people, including the defendant, and it is as much his or her duty to safeguard the constitutional rights of the defendant as those of any other citizen. People v. Lyles, 106 Ill. 2d 373, 411-12, 478 N.E.2d 291, 308 (1985). The majority acknowledges, as it must, that the second step of the Batson process places the burden on the prosecution to articulate a race-neutral explanation for each of the peremptory challenges. The State’s failure to proffer such an explanation as to venireperson Cameron represents a breach of its duty, not only as to the defendant, but also as to Cameron.

The majority opinion ultimately rests on the concern that a defendant may engage in “sandbagging” by remaining silent in this type of situation. Unfortunately, the majority opinion does not reflect a similar concern that the trial judge and the State live up to their legal duties — duties which are more established in law than the duty imposed on the defendant by the majority. Pursuant to Blackwell, this case should be remanded for further proceedings. Accordingly, I respectfully dissent.