People v. Wicks

2020 IL App (5th) 130166-U

• Court: Appellate Court of Illinois
• Decided: February 27, 2020
• Docket: 5-13-0166
• Status: Unpublished

Opinion

2020 IL App (5th) 130166-U NOTICE NOTICE Decision filed 02/27/20. The This order was filed under text of this decision may be NO. 5-13-0166 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the IN THE Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 11-CF-1388 ) KENNY WICKS, ) Honorable ) Michael N. Cook, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Overstreet and Boie concurred in the judgment.

ORDER

¶1 Held: We remand for the limited purpose of a proper Batson hearing in this case, because the trial judge did not conduct an adequate legal analysis of the defendant’s claim that the State engaged in discrimination, on the basis of race, during the selection of the jury that served as the trier of fact at the defendant’s first degree murder trial.

¶2 The defendant, Kenny Wicks, appeals his conviction and sentence, following a trial by

jury in the circuit court of St. Clair County, for first degree murder. For the following reasons,

we remand for the limited purpose of a proper Batson hearing in this case, because the trial judge

did not conduct an adequate legal analysis of the defendant’s claim that the State engaged in

discrimination, on the basis of race, during the selection of the jury that served as the trier of fact

at the defendant’s trial.

1 ¶3 I. BACKGROUND

¶4 The facts necessary to our disposition of this direct appeal follow. On September 22,

2011, the defendant was charged, by criminal complaint, with first degree murder for his role in

the shooting death of James Earl Rogers, Jr., on June 13, 2007. The criminal complaint was

thereafter superceded by a criminal indictment that made the same allegation. Prior to trial, the

State filed a notice of intent to seek enhanced sentencing on the basis of the State’s allegation

that it would prove that the defendant personally discharged the firearm which proximately

caused the death of Rogers. The State’s filing noted that, if proven, the firearm enhancement

would add, by operation of law, a minimum of 25 years of imprisonment to the sentence received

by the defendant.

¶5 The case proceeded to trial, with the jury selection process taking place on the afternoon

of January 28, 2013, following the resolution, that morning, of other pretrial matters. The

potential jurors were questioned first by the trial judge, then by each of the parties. Following

questioning, after the parties and the trial judge were outside the presence of the pool of potential

jurors, each party exercised peremptory strikes and strikes for cause. Thereafter, the following

colloquy occurred, which we note accurately summarized the contentions of the parties with

regard to the peremptory strikes that had been used:

“THE COURT: You had a motion, [defense counsel]?

DEFENSE COUNSEL: Yeah. I want to have—I always—to protect the record, I

would like to have a Batson challenge on this jury. The jury, of course, has one black

person and eleven white people. And it’s not a representative jury of St. Clair County.

And it’s—it possibly is not a representative jury for the trial of this case in which a black

man goes on trial. I particularly place emphasis on the fact that juror number 12, Jonetta

Watson, was struck—I guess was stricken by the State’s Attorney’s office for no cause or 2 no reason. There was absolutely nothing that she said or implied or any associations or

any work situations which would require anybody to strike her as a juror except the fact

that she is black.

THE COURT: Thank you. State?

[COUNSEL FOR THE STATE]: Judge, for defense counsel to go towards a

Batson challenge, I believe that there would have to be a finding of a pattern. There is no

pattern because only one juror was struck by the State that was African American in race.

However, one African American was struck by the defense, and it was not for cause. That

would be seat 10, number 261, Patrice Howard. So we struck one peremptorily. He struck

one peremptorily. And everybody else who was African American was stricken for cause.

So I would ask the court to deny the motion at this time.

THE COURT: The State is correct. The defense counsel would—is required to

show a pattern. And striking one juror does not rise to the level of a pattern. And as the

State indicated, [defense counsel] used one of his peremptory challenges on an African

American as well. The [c]ourt denies the motion for the Batson challenge.”

¶6 The following morning, the presentation of witnesses in the defendant’s jury trial

commenced. For the reasons explained below, the testimony presented is not relevant to the

dispositive issue before this court at this time. At the conclusion of the trial, the jury found that

the defendant was guilty of first degree murder, and the jury also found that the allegation that

the defendant had personally discharged a firearm that proximately caused great bodily harm,

permanent disability, permanent disfigurement, or death to another person was proven.

Thereafter, the defendant was sentenced to 20 years of imprisonment on the conviction for first

degree murder, with 25 more years added to the sentence because of the firearm enhancement.

3 The entire sentence of 45 years was to be served at 100% and followed by 3 years of mandatory

supervised release. This timely appeal followed.

¶7 II. ANALYSIS

¶8 The defendant raises four arguments in this appeal. However, we conclude, for the

following reasons, that it is appropriate to address only the first of those arguments at this time.

The argument we must address is the defendant’s contention that the trial judge did not conduct

an adequate legal analysis of the defendant’s claim of discrimination, on the basis of race, during

the selection of the jury that served as the trier of fact in this case.

¶9 As this court has recognized, there is a three-step process to evaluate claims of alleged

discrimination on the basis of race during jury selection. People v. Shaw, 2014 IL App (4th)

121157, ¶ 17. The process was established by the United States Supreme Court in Batson v.

Kentucky, 476 U.S. 79 (1986). Shaw, 2014 IL App (4th) 121157, ¶ 17. First, the defendant must

make a prima facie showing that the State has exercised a peremptory challenge on the basis of

race. Id. ¶ 18. The threshold for the prima facie showing “is not high,” and is satisfied if the

defendant produces evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred. Id. The trial judge is to consider the totality of the relevant facts as

well as all relevant circumstances surrounding the exercise of the peremptory challenge to

determine if they give rise to a discriminatory purpose. Id. Specifically, the trial judge needs to

consider, inter alia, the following seven factors: (1) racial identity between the party that has

exercised the peremptory challenge and the excluded potential juror or jurors, (2) a pattern of

strikes against African-American potential jurors, (3) a disproportionate use of peremptory

challenges against African-American potential jurors, (4) the level of African-American

representation in the jury pool, as compared to the jury as selected, (5) the State’s questions and

statements of the challenging party during the voir dire process and while exercising peremptory 4 challenges, (6) whether the African-American potential jurors who were excluded were a

heterogenous group that shared race as their only common characteristic, and (7) the race of the

defendant, the victim, and the witnesses. Id. The trial judge also considers as a factor what is

known as a comparative juror analysis, in which the trial judge examines the State’s questions to

the prospective jurors, and the responses of the prospective jurors to those questions, to

determine if the State has treated otherwise similar jurors differently because of their

membership in a particular group. Id. Upon completion of the foregoing, if the trial judge

concludes the low threshold for making a prima facie showing pursuant to Batson has been met,

the trial judge proceeds to the second step in the process. Id.

¶ 10 The second step in the process is for the State to attempt to articulate a race-neutral

reason for striking the potential juror. Id. ¶ 19. If the State establishes a race-neutral reason for

striking the potential juror, the defendant is given the opportunity to attempt to rebut the

proffered reason as pretextual. Id. Thereafter, during the third step in the process, the trial judge

is to determine whether the defendant has shown purposeful discrimination, in light of the

submissions of the parties. Id. ¶ 20. To make this determination, the trial judge evaluates not

only whether the demeanor of the State belies discriminatory intent, but also whether the

demeanor of the potential juror can credibly be said to have exhibited the basis for the strike

attributed to the potential juror by the State. Id.

¶ 11 When this court has reviewed a trial judge’s execution of the three-step Batson process—

which is often called a Batson hearing, even if no separate formal hearing is held—we have

noted that although “evidence of a pattern of discriminatory strikes is one factor” the trial judge

must consider to determine if the low threshold for making a prima facie showing has been

satisfied, “it is not a dispositive factor.” Id. ¶ 25 (citing People v. Blackwell, 164 Ill. 2d 67, 75

(1995)). We have noted this because it is clear that if the absence of a pattern of strikes were 5 enough, by itself, to prevent the prima facie showing necessary to move to the second step of the

process, the State would always be able to exercise at least one peremptory strike in a

discriminatory manner, without fear of being held to its constitutional responsibilities. Id. We

have rejected such a “one free discriminatory strike” rule, because it is inconsistent with Batson

and its progeny, which recognize that the exclusion of even one potential juror on the basis of

race is unconstitutional and requires the reversal of any criminal conviction in the proceedings

that followed the Batson violation. Id.

¶ 12 We have also noted the well-established rule that the trial judge must not combine the

first and second steps of the Batson process in a manner that diminishes the distinction between

the requisite prima facie showing and the subsequent attempted production, by the State, of

neutral explanations for its use of peremptory challenges. Id. ¶ 26. Instead, the trial judge should

“proceed[ ] methodically through the required three-step Batson process,” which means

completing the first step of the analysis and determining whether the low threshold for making a

prima facie showing has been satisfied “before proceeding to the second step.” Id. As we have

recognized, “Batson and its progreny have established a clear three-step process that trial courts

must follow when evaluating a claim of discrimination during jury selection,” and when trial

judges fail to follow this clear process, it can create a situation where “the record is insufficient

for us to conduct a meaningful review of [the] defendant’s Batson challenges.” Id. ¶ 30. In such

circumstances, the proper course of action is for this court “to remand to the trial court for the

limited purpose of conducting a full Batson hearing.” Id. We have set out, in detail, the

procedures to be employed on remand, in accordance with the three-step process described

above. Id. ¶¶ 33-35. In so doing, we have recognized the difficulties that the passage of time may

create, particularly in light of credibility determinations that must be made by the trial judge if

6 the process reaches the third step. Id. ¶ 35. In conjunction with the limited remand, we withhold

our disposition of the remaining issues on appeal. Id. ¶ 36.

¶ 13 In this appeal, in response to the defendant’s Batson claim, the State seeks to invoke the

undisputed general proposition of law that a reviewing court will ordinarily presume that a trial

judge knows and follows the law unless the record indicates otherwise. See, e.g., People v.

Woolley, 178 Ill. 2d 175, 200 (1997). However, we agree with the defendant that this is a case

where the record before us clearly indicates otherwise, and in fact demonstrates unequivocally

that the trial judge did not know and follow the law, because he rendered his ruling on the

defendant’s Batson claim without first following the required aforementioned Batson procedure.

As described above, in the trial court the State attempted to overcome the defendant’s Batson

claim by contending that “there would have to be a finding of a pattern” of discriminatory strikes

for a viable Batson claim to exist. Moments later, the trial judge’s express statement of his view

on the law of the matter was the following:

“The State is correct. The defense counsel would—is required to show a pattern.

And striking one juror does not rise to the level of a pattern. And as the State indicated,

[defense counsel] used one of his peremptory challenges on an African American as well.

The [c]ourt denies the motion for the Batson challenge.”

This statement reflected an inaccurate understanding not only of one of the points of law relevant

to the defendant’s Batson claim (see, e.g., Shaw, 2014 IL App (4th) 121157, ¶ 25 (although

evidence of pattern of discriminatory strikes is one factor trial judge must consider to determine

if the low threshold for making a prima facie showing has been satisfied, it is not a dispositive

factor)), but also of the entire procedure the judge was required to follow to assess the

defendant’s claim, set forth in detail above. With regard to the point of law in question, also as

set forth above, the legal position adopted by the trial judge in this case was not permissible 7 because thereunder the State would always be able to exercise at least one peremptory strike in a

discriminatory manner, without fear of being held to its constitutional responsibilities. See, e.g.,

id. This is inconsistent with Batson and its progeny, which recognize that the exclusion of even

one potential juror on the basis of race is unconstitutional. Id. With regard to procedure,

unfortunately the trial judge relied on his misunderstanding of the law to short-circuit—in fact, to

abruptly terminate—the process by which he was required to evaluate the defendant’s claim. As

a result, the record is insufficient for this court to conduct a meaningful review of the defendant’s

Batson challenge. Accordingly, remand to the trial court for the limited purpose of conducting a

legally adequate Batson hearing is required, to determine whether a Batson violation occurred in

this case. Id. ¶ 30.

¶ 14 Because of our conclusion that remand for a proper Batson hearing is required, we

withhold disposition of the other issues raised by the defendant on appeal. Id. ¶ 36. We direct the

trial judge who handles the case on remand to file the trial judge’s findings of fact and

conclusions of law with the clerk of this court within 60 days of the trial judge’s decision, along

with the record of proceedings on remand. Id. This court retains jurisdiction to review the trial

judge’s ruling after remand, and to address the remaining issues raised by the defendant in this

appeal, if those issues have not been rendered moot by the trial judge’s ruling. Id. If needed, we

will allow the parties to file supplemental briefs in this court that address any issues which arise

from the limited remand for a proper Batson hearing. Id.

¶ 15 III. CONCLUSION

¶ 16 For the foregoing reasons, we remand with directions for proceedings consistent with this

order.

¶ 17 Remanded with directions. 8