dissenting:
I cannot agree with the majority’s decision to remand the present matter to the circuit court for further Raison-type proceedings on the defendant’s charge of sex discrimination in the selection of his jury. (See J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419; Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69,106 S. Ct. 1712.) In reaching this result, the majority ignores a basic tenet of appellate review and enlarges considerably the plain error exception to the waiver rule.
Until today’s decision, our cases had uniformly held that a defendant’s failure to raise a Batson claim in the trial court would result in the default of that contention. (People v. Fair (1994), 159 Ill. 2d 51, 71; People v. Evans (1988), 125 Ill. 2d 50, 61-62.) Accordingly, irregularities in the Batson hearing are waived if not brought to the attention of the trial judge (People v. Ramey (1992), 151 Ill. 2d 498, 522-23), and deficiencies or ambiguities in the record must be construed against the defendant (People v. Hudson (1993), 157 Ill. 2d 401, 428-29; People v. Henderson (1990), 142 Ill. 2d 258, 279-80).
This court has found the waiver rule to be inapplicable only when the State itself has failed to object to the timeliness of the defendant’s Batson claim (Henderson, 142 Ill. 2d at 283; People v. Andrews (1989), 132 Ill. 2d 451, 457-58; People v. Harris (1989), 129 Ill. 2d 123, 170-71) or when a ruling of the trial court has prevented the defense from preserving, on the record, information necessary for review of the issue (People v. Pecor (1992), 153 Ill. 2d 109, 117-21; People v. Williams (1991), 147 Ill. 2d 173, 219; People v. McDonald (1988), 125 Ill. 2d 182, 194-95). We have emphasized, however, the need for an appropriate objection even when the claim is based on a theory that, at the time of trial, had not yet been recognized by the Supreme Court. (Pecor, 153 Ill. 2d at 125-26.) Thus, our cases have been consistent in requiring at a minimum that a defendant have made the Bat-son objection in the trial court in the first instance and have initially presented the issue to that court for its consideration. Even in the one prior case in which we addressed the merits of an arguably waived Batson objection, made after the jury was sworn, the defendant presented the issue first to the trial judge, who considered the question on its merits; moreover, there is no indication in the opinion in that case that the State objected at trial to the timeliness of the defendant’s claim. People v. Hudson (1993), 157 Ill. 2d 401, 424-25.
In the present case, the defendant made no objection to the prosecutor’s exercise of peremptory challenges against female members of the venire, and the trial judge never had the opportunity to consider this particular contention. The defendant did raise a Batson argument in the trial court, but his objection then was strictly limited to the prosecutor’s alleged exclusion of prospective jurors on the basis of their race; at no point in the proceedings below did the defendant object to the removal of any female venire member on the basis of her sex. Ordinarily, then, we would consider the defendant’s contention waived. The majority nonetheless chooses to grant the defendant relief, relying on a novel invocation of the plain error rule. See 134 Ill. 2d R. 615(a).
In applying the plain error doctrine to the present case, the majority simply finds that the nature of an alleged Batson error is so fundamental that the defendant’s default must be excused. (164 Ill. 2d at 74-75.) The majority’s reasoning proves too much, however. Under this analysis, no allegation of Batson error would ever be deemed waived — yet our own case law unequivocally demonstrates that a defendant’s failure to make an appropriate, timely objection will result in default of the issue.
Given the procedural posture of the case at bar, the majority’s invocation of the plain error rule as its justification for review of the defendant’s defaulted Bat-son claim is especially puzzling. In the present case, we are faced only with the possibility of error, not with the actual occurrence of error: the majority concludes merely that the defendant has established a prima facie case of discrimination in the selection of his jury and remands the matter to the circuit court so that the prosecution may be given the opportunity to explain its exercise of peremptory challenges against female members of the venire. Yet the existence of plain error, not possible error, is one of the prerequisites for application of the plain error doctrine. (See United States v. Olano (1993), 507 U.S. 725, 732, 123 L. Ed. 2d 508, 518, 113 S. Ct. 1770, 1777 ("The first limitation on appellate authority under Rule 52(b) [i.e., the Federal plain error rule] is that there indeed be an ’error’ ”); People v. Mitchell (1992), 152 Ill. 2d 274, 335 (prosecutor’s unobjected-to comments to jury "were not improper, much less plain error”); People v. Harris (1989), 132 Ill. 2d 366, 385-86 (admission of unobjected-to testimony "was not error, much less plain error”); People v. Lann (1994), 261 Ill. App. 3d 456, 477 (DiVito, P.J., dissenting) ("Illinois courts have always required that both the ’plain’ and the ’error’ limitations on plain error application be satisfied”).) By granting the defendant relief on his waived Batson claim, the majority expands considerably the reach of the plain error doctrine, bringing within its scope not only actual errors, but potential ones as well.
The only plausible means by which the defendant should now be permitted to raise this argument is under the sixth amendment rubric of ineifective assistance of counsel. Yet the defendant has failed to make that contention, and we should not attempt to do so for him. The defendant offered no semblance of an objection in the trial court to the prosecution’s removal of women from the jury, although defendants in other cases have been raising the same or similar arguments for years. (See People v. Washington (1993), 257 Ill. App. 3d 26; People v. Ashley (1991), 207 Ill. App. 3d 984; People v. Crowder (1987), 161 Ill. App. 3d 1009.) The potential effect of today’s decision on our appellate jurisprudence should not be discounted, inviting as it does the proliferation on review of otherwise waived issues. The defendant’s failure to raise an appropriate objection at trial should bar him from obtaining relief on the defaulted claim at this stage of the proceedings, and, rather than remand the case to the circuit court, I would consider now the defendant’s remaining allegations of error.
CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.