concurring in part and dissenting in part:
I agree with the majority that the circuit court’s determination that defendant failed to establish a prima facie case of racial discrimination in the State’s use of its peremptory challenges was not against the manifest weight of the evidence. I do not agree, however, with the majority’s decision to invoke the plain error exception to the waiver rule in this case, and to remand for a hearing to determine whether there was error, even though in a proper case I would extend Batson to gender-based discrimination.10 Therefore, I must respectfully dissent from that portion of the majority’s opinion.
I
Illinois courts have always required that both the "plain” and the "error” limitations on plain error application be satisfied. (E.g., People v. Precup, 73 Ill. 2d at 17, 382 N.E.2d at 231 ("Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed”).) The majority does not make a finding that "error” occurred here and, of course, it cannot proclaim as "plain” an error it has not found. Thus, despite its "plain error” analysis, the majority, having found no plain error, remands the matter to the circuit court for its determination of whether error occurred and, presumably, whether that error was plain. This result cannot be justified by the plain error exception to the waiver doctrine.
Indeed, the majority’s decision represents an unprecedented and undue expansion of the plain error exception. My research has not disclosed one Illinois case that invokes the plain error rule, as the majority does here, not to declare that error has occurred and that reversal or remand for a new trial is mandated, but to remand for the very purpose of determining whether error occurred.
In United States v. Olano (1993), 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770, while noting that a constitutional or any other right may be forfeited by the failure to timely assert the right, the United States Supreme Court provides significant guidance for appellate review of claims based upon plain error. The Court’s discussion is fully applicable to Illinois plain error analysis, for it interprets and applies Rule 52 of the Federal Rules of Criminal Procedure, which is identical to the plain error provisions that apply to this case through Illinois Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). In Olano, the Court emphasizes that a reviewing court’s authority created by plain error principles is circumscribed by three limitations: "There must be an 'error’ that is 'plain’ and that 'affectfs] substantial rights.’ ” (Olano, 507 U.S. at 732, 123 L. Ed. 2d at 518, 113 S. Ct. at 1776.) After pointing out that "plain” is synonymous with "clear” or "obvious,” the Court states, "[a]t a minimum, [a reviewing court] cannot correct an error pursuant to [the plain error rule] unless the error is clear under current law.” Olano, 507 U.S. at 734, 123 L. Ed. 2d at 519, 113 S. Ct. at 1777.
The majority opinion here, through constitutional interpretation, announces a rule prohibiting gender discrimination in the selection of juries in Illinois. It is obvious that what is first announced in this opinion cannot be said to have been the "current law.” Thus, what the United States Supreme Court has characterized as a minimum requirement for plain error analysis is lacking.
Moreover, the majority’s plain error analysis is fundamentally flawed because it ignores both the "error” and the "plain” limitations on its review powers, focusing instead on the "substantial rights” limitation. Thus it justifies its application of plain error by reasoning that our courts have never specifically rejected it in Batson situations and by stressing the important values compromised by gender discrimination in jury selection. In doing so, the majority ignores the relevant admonition of our supreme court: "Rule 615(a) does not operate in the nature of a general savings clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court.” Precup, 73 Ill. 2d at 16; reiterated in People v. Herrett (1990), 137 Ill. 2d 195, 215-16, 561 N.E.2d 1, 10-11.
Had there been a sufficient basis to find a prima facie case of gender discrimination in the record, remand certainly would be proper. In that case, the remand would not be to find error; this court would already have found a prima facie case of error, and the remand would be for the purpose of allowing the prosecution to articulate gender-neutral reasons for its peremptory challenges of women. Without such a finding, however, the majority’s logic is flawed. I cannot concur with a decision to remand in order to discover whether error has occurred, when the majority does so under the plain error exception to the waiver doctrine.
II
After correctly deciding that defendant waived (or forfeited)11 his right to raise this gender discrimination claim, the majority justifies its version of the plain error exception by asserting that "unique circumstances” compel its conclusions. I respectfully disagree.
The "unique circumstances” are that the trial at issue was held one year before Batson was decided in 1986 and that in 1985, "[no] decision was handed down that even hinted that gender-discrimination concerns were implicated in the jury selection process.” (261 Ill. App. 3d at 468.) The majority goes on to suggest that "[h]ad this or any other defendant objected to the State’s use of its peremptory challenges to exclude venire members on account of their gender before [Batson and Powers] were decided, such a motion would sadly have been considered to be frivolous, *** as no controlling authority existed at that time to support it.” (261 Ill. App. 3d at 468.) The majority then concludes that "[i]t surely would have been an obvious waste of judicial resources for defendant to object to the exclusion of women from the petit jury in his trial in 1985.” (261 Ill. App. 3d at 468.) The majority, however, is silent about defendant’s having overlooked the opportunity to raise this point at his 1990 Bat-son hearing, by which time the issue certainly was no longer novel. (United States v. De Gross (9th Cir. 1990), 913 F.2d 1417, 1423 (extending Batson to a defendant’s gender discrimination in selecting the jury at his 1987 trial); United States v Hamilton (4th Cir. 1988), 850 F.2d 1038, 1043 (declining to extend Batson when government gave as its race-neutral reason for having struck female jurors at a pre-Batson trial that it wanted men), cert, denied (1990), 493 U.S. 1069, 107 L. Ed. 2d 1017, 110 S. Ct. 1109; United States v. Broussard (5th Cir. 1993), 987 F.2d 215 (same).) At least one State court had considered the question as early as 1982. State v. Ucero (R.I. 1982), 450 A.2d 809.
I believe the majority errs in holding that a newly announced rule of constitutional dimension may be applied to a case pending on direct review, even if the defendant did not raise the issue at trial. The majority cites no cases in which a court has permitted a defendant to invoke such a newly announced rule without having voiced an objection during the proceeding from which appeal was taken. Not even in Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, in which the United States Supreme Court determined that Batson should apply retroactively to cases pending on direct appeal at the time Batson was announced, did the Court state, or even imply, that its ruling would apply when a defendant had not raised a discrimination claim at trial.
Here, neither during his trial nor in his post-trial motion did defendant challenge the State’s use of its peremptory challenges to exclude women from the petit jury. He uttered not a murmur when, at the Batson hearing in 1990, the assistant State’s Attorney, who had not participated in the trial, effectively invited such an objection with the candid observation that the trial prosecutor "for whatever reason, *** in this case found it advantageous or desireable to have males on this jury.” Under these "unique circumstances,” our review under the plain error exception to the waiver doctrine is unwarranted.
III
Although I agree that in a proper case this court may invoke the plain error rule sua sponte, I question the propriety as well as the wisdom of entertaining defendant’s claim when the determination from which he is appealing is not the original voir dire but only the circuit court’s finding that he failed to present a prima facie case that the State used its peremptory challenges to improperly exclude African-Americans from the jury. The majority apparently believes that any issue of constitutional import arising at the trial is fair game for our careful scrutiny at this time. It cites no support, however, for the proposition that a reviewing court’s reach extends to questions different from those the circuit court determined on the remand, thereby permitting a defendant to get a "second bite of the apple” on review after remand.12 This case does not justify such a ruling.
IV
Some additional observations concerning that portion of the majority’s holding with which I disagree are in order.
The majority’s reliance on our supreme court’s holding in Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831, is puzzling. In that case, the supreme court rejected a party’s contention that the appellate court had relied upon an argument not presented to it. In so doing, the supreme court had no occasion to overlook waiver in resolving the central issue in the case. The waiver language quoted by the majority was used merely to justify its holding that a reviewing court may overlook the provisions of Supreme Court Rule 341(e)(7), a rule addressing one’s ability to raise waived points in a reply brief, a far cry from the type of waiver involved in this case. Moreover, although the quoted language from Hux is ostensibly consistent with its views, the majority fails to take note of the following cautionary language in that case:
"There are limitations [to a reviewing court’s ability to override considerations of waiver]. '[A]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.’ [Citation.] In exercising the power care should be taken that the litigants are not deprived of an opportunity to present argument.” Hux, 38 Ill. 2d at 225.
In disregarding the waiver that it concedes occurred in this case, the majority stresses that " '[t]he waiver rule is one of administrative convenience rather than jurisdiction.’ ” (261 Ill. App. 3d at 470, quoting Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360.) What the majority neglects to point out, however, is that the quoted principle is the underpinning for our review of plain error; it does not justify a search for any error or, as the majority regrettably does here, a remand to determine whether error occurred. Indeed, some self-imposed limitation on our review power is advisable; prudence dictates caution in overriding well-established waiver principles, except in genuine plain-error situations. We must be mindful of the premise upon which the waiver doctrine is based: the need to call alleged error to the attention of one’s adversary and the trial court so that remedial measures might be taken at the circuit court level. We should also recognize that the waiver doctrine effectively encourages competency of members of the trial bar, while our willingness to ignore waiver fosters unprofessionalism and rewards ineptness. Most significantly, such willingness requires appellate counsel in criminal cases to pursue waived issues, lest claims of ineffective assistance of counsel be lodged against them, for at any time a reviewing court might do what the majority does here.
In responding to what it refers to as my desire for a "hypertechnical legal package” and my "constrictive implementation of waiver,” the majority quotes the Spanish poet Antonio Machado. (261 Ill. App. 3d at 472 n.7.) The majority’s revelational choice of quotation underlies its statement that "[e]ven in the absence of Hux as precedential authority, we would *** be compelled to decide this case no differently than we do here.” (261 Ill. App. 3d at 472 n.7) I reject the notion that "you make the way as you go” can be a proper principle for appellate review. If it were, it would devour all of the firmly established principles that properly temper our review authority.
Although I share the majority’s fervor regarding the unacceptability of gender discrimination in jury selection, I do not share its belief that the mere possibility of gender discrimination is so offensive that, regardless of the adequacy of the record, we are compelled to state that fact forcefully here and remand for a hearing as to its existence, even though no precedent justifies such action. This is not a case that demands articulation of fervor concerning gender discrimination; we should await a case that presents that issue in a proper form. This, in summary, is not a case that requires the unique treatment the majority affords it.
As my concurrence in Mitchell should make plain, I believe that gender discrimination in the selection of jurors violates both the State and the Federal constitutional guarantees of equal protection. Our supreme court recently vacated "that part of the judgment of the appellate court *** prescribing the procedure to be followed upon retrial in the event of a motion for a Batson hearing premised upon gender-based exclusion of [potential] jurors” (Mitchell, 155 Ill. 2d at 356-57), which it quoted, but the court did not express dissatisfaction with the substance of our reasoning and conclusions.
Justice Ryan, specially concurring with the Illinois Supreme Court’s decision in People v. Free (1988), 122 Ill. 2d 367, 522 N.E.2d 367, cert, denied (1988), 488 U.S. 872, 102 L. Ed. 2d 159, 109 S. Ct. 190, distinuishes between the term "waiver” and the term used by the majority in that case, "procedural default.” "Waiver is an intelligent relinquishment of a known right o[r] a privilege. [Citation.] Procedural default, on the other hand, relates to a failure by counsel to comply with certain procedural requirements which results in the forfeiture of the right to raise error on appeal.” [Free, 122 Ill. 2d at 379 (Ryan, J., specially concurring).) Our courts have long used the term "waiver” when perhaps "forfeiture” might have been more accurate. For that reason, in this dissent, like the majority, I use the term "waiver” as synonymous with "forfeiture.”
The United States Supreme Court in Olano also distinguishes between "waiver” (the "intentional relinquishment or abandonment of a known right”) and "forfeiture” (the "failure to make the timely assertion of a right”). Olano, 507 U.S. at 733, 123 L. Ed. 2d at 519, 113 S. Ct. at 1777.
The procedural posture of this appeal, i.e., a separate appeal from the hearing after remand, is unusual. Nine months after our first opinion in this case, the supreme court explained that when remanding for a Batson hearing, the appellate court should retain jurisdiction as Rule 615(b) (134 Ill. 2d R. 615(b)) allows, issuing its opinion after the hearing. (People v. Garrett (1990), 139 Ill. 2d 189, 194-95, 564 N.E.2d 784, 787.) Even if we had retained jurisdiction while remanding for the Batson hearing, I believe that only issues arising from that hearing could be newly raised. See, e.g., People v. Jones (1989), 185 Ill. App. 3d 208, 544 N.E.2d 161 (supplemental opinion after remand).