author: PRESIDING JUSTICE BUCKLEY

text:
    STANLEY M. BUGNO et al., Plaintiffs-Appellees, v. MT. SINAI HOSPITAL MEDICAL CENTER, Defendant-Appellant.
    First District (1st Division)
    No. 1-88-3406
    Opinion filed May 14, 1990.

      Lord, Bissell & Brook, of Chicago (Harold L. Jacobson and Hugh C. Griffin, of counsel), for appellant.
    Drumke & Patterson, Ltd., of Chicago (Robert B. Patterson and Danielle M. Jaeschke, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Stanley and Elaine Bugno (plaintiffs) brought a medical malpractice action against Mt. Sinai Hospital Medical Center (Mt. Sinai) and Dr. Prahled Pyati for injuries sustained by Stanley as a result of Mt. Sinai’s and Dr. Pyati’s negligent treatment of his leg fracture. Prior to trial, Dr. Pyati settled plaintiffs’ claims for $375,000. Following a jury trial, the jury returned a verdict against Mt. Sinai and awarded plaintiffs $3,500,000 in damages. The judgment was thereafter reduced to $3,084,035.38 by the $375,000 settlement amount tendered to plaintiffs by Dr. Pyati and by the additional sum of $40,964.62, pursuant to the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1205), which represented 50% of the unreimbursed medical, hospital and lost-time benefits paid to plaintiffs by others. Mt. Sinai appeals from this judgment and seeks a new trial. Mt. Sinai presents the following issues on appeal: (1) whether the trial court erred in admitting an exhibit as demonstrative evidence; (2) whether the trial court erred in explaining the plaintiffs’ burden of proof to the jury; (3) whether Mt. Sinai was denied a fair trial where the trial court limited a witness’ testimony; and (4) whether the trial court erred in its instructions to the jury. We affirm.

On October 2, 1980, Stanley was treated at Mt. Sinai for a fractured left ankle. Because Stanley’s ankle was swollen, a molded “temporary cast,” which did not completely encircle the leg was applied to the ankle. The exposed portion of the leg was wrapped in an “Ace” bandage. At the emergency room doctor’s request, Stanley returned to Mt. Sinai on October 6, 1980, at which time he was examined by Dr. Pyati, an orthopedic surgeon, and Dr. Brian Wood. Dr. Pyati ordered that Stanley remain in the “temporary cast” because his ankle was still swollen and that he return to Mt. Sinai’s Cast Clinic on October 10, 1980. On October 10, 1980, Stanley returned to Mt. Sinai, at which time Dr. Pyati ordered that a short walking cast be applied to Stanley’s lower left leg and that he return to the hospital in four weeks.

Stanley returned to Mt. Sinai on October 17, 1980, complaining that he suffered discomfort in his left leg and foot and that the heel of his cast had “crumbled.” Casting room technician Luis Leonardo trimmed Stanley’s cast at the top near his calf, at the bottom near his toes, and repaired the cast’s crumbled heel.

After continued discomfort in his left leg and foot, Stanley telephoned Dr. Pyati on October 20, 1980. Dr. Pyati requested that Stanley return to Mt. Sinai’s Cast Clinic on its next business day, October 22, 1980. After examining Stanley’s leg on October 22, Doctors Pyati and Wood diagnosed Stanley as suffering from deep vein thrombosis (DVT), a blood clotting condition in his left calf directly underneath the cast. Stanley was subsequently admitted to Mt. Sinai, and his cast was removed. To avoid blood clotting, Dr. Pyati prescribed Heparin, an anticoagulant, and ordered a venogram test, which evidenced no blood clots. On November 1, 1980, Stanley suffered a stroke.

At trial, plaintiffs adduced the following additional evidence. Dr. Virginia Ambrosini, an internal medicine specialist, and Stanley’s attending physician at Mt. Sinai, testified that a stroke occurs when an individual’s artificial blood supply to the brain becomes occluded and that Stanley’s treatment rested upon whether his stroke was thrombotic or embolic. A thrombotic stroke occurs when an individual has an arteriosclerotic growth causing a blockage in one of the branches of the left cartoid artery which leads to the brain. No evidence of arteriosclerosis was noted by Dr. Ambrosini from the results of Stanley’s brain flow study performed in November 1980. An embolic stroke occurs when a piece of foreign material, usually a blood clot, “let[s] loose” from somewhere in the body and lodges in a vessel blocking the flow of blood to the brain. Dr. Ambrosini opined that the clot which caused Stanley’s stroke was a paradoxical embolus which originated in Stanley’s left leg and traveled from the venous system through a patent foramen ovale in Stanley’s heart into the arterial left cartoid circulation system and then to the brain.

The testimony of Dr. Norman Kohn, Stanley’s treating neurologist at Mt. Sinai, Dr. David Lubell, Stanley’s treating cardiologist at Mt. Sinai, Dr. Donald Miller, an orthopedic surgeon and plaintiffs’ expert witness, and Dr. Pyati concurred with the above testimony.

Dr. Muhammad M. Ilahi, a neurologist and Stanley’s treating physician, testified that when he performed an ultrasound test on the major arteries of Stanley’s neck in 1986 to determine whether Stanley suffered from an arteriosclerotic condition, or plaque in the arteries, the ultrasound disclosed no arteriosclerosis. He further testified that arteriosclerosis is a progressive disease and that Stanley could not have suffered from the disease in 1980 since there was no evidence of arteriosclerosis in 1986.

Dr. Kohn’s testimony was substantially similar to the testimony given above by Dr. Ilahi.

Dr. James Talano, a cardiologist at Northwestern Memorial Hospital in Chicago, testified that in his expert opinion Stanley did not suffer from cerebral arteriosclerosis, cartoid arteriosclerosis, clots in the heart, or abnormalities in the mitral and aortic valves. He further testified that no pathology or abnormality of the left heart, the left chambers, the aorta or great vessels existed. Dr. Talano opined that the cause of Stanley’s stroke resulted from a “clot that originated in [Stanley’s] leg that paradoxically went across the septum.”

Regarding the cause of the blood clot, Dr. Miller testified that the tightness of Stanley’s cast caused the DVT. Dr. Miller further testified that Stanley had a simple noncomminuted fracture in his left lateral malleolus and that a cast should not place pressure on the blood vessels in an extremity.

Dr. Miller also testified that Dr. Pyati’s and Leonardo’s conduct was below the applicable standard of care because they failed to remove Stanley’s cast after repeated complaints by Stanley of discomfort, swelling and discoloration. Dr. Miller opined that had the cast been removed, Stanley’s stroke would not have occurred.

In order to illustrate the manner in which the cast appeared on October 10, October 12, and October 17, 1980, before and after it was trimmed and repaired, plaintiffs were allowed to utilize as demonstrative evidence group exhibit No. 1, which consisted of exhibits 1A, IB and 1C. Group exhibit No. 1 consisted of a large, poster-size drawing of the lower portion of a leg with overlays depicting different variations of the manner in which the cast and Stanley’s leg appeared over a period of time. Different colors were used to depict swelling and discoloration of Stanley’s leg. The drawings were prepared by a medical artist based upon descriptions given him by Stanley and Elaine Bugno, Mary Ann Bugno, Richard Zolna, and Bernadette and Joseph Jarosz. Zolna and the Jaroszes attended a party with Stanley on October 12, 1980, and were therefore familiar with the condition of his leg. Exhibit 1A depicted discoloration and swelling subsequent to the cast’s application on October 10, 1980. Exhibit IB depicted the condition of the cast prior to its repair on October 17, 1980. Exhibit 1C depicted the appearance of Stanley’s casted leg subsequent to his October 17, 1980, hospital visit.

Plaintiffs, Mary Ann Bugno, Richard Zolna, and Joseph and Bernadette Jarosz testified to the accuracy of exhibit 1A. Plaintiffs and Mary Ann Bugno testified to the accuracy of exhibits IB and 1C.

Mt. Sinai presented two witnesses to rebut Dr. Miller’s opinion. Dr. Pyati testified that he was unable to offer any opinion as to whether a tightly applied, short-leg walking cast where the skin is swollen and overhanging falls below the applicable standard of care to cast clinics. He stated that when he applies a cast, he makes certain that it is not too tight; that in a “normal” patient there should be no overhanging flesh; that when a cast is properly applied a finger should be able to be inserted between the cast and the skin; that if a cast is so tight that it immobilizes the venous blood flow, a blood clot can form and the cast should be removed; that if a doctor observes a tightly applied cast as depicted in plaintiffs’ group exhibit 1, he should bival the cast and remove it; and that failure to remove the cast would constitute conduct which falls below the applicable standard of care.

Dr. Robert Thompson, an orthopedic surgeon, testified on behalf of Mt. Sinai as an expert witness. Dr. Thompson testified that he was unfamiliar with the standard of care applicable to Chicago-area cast rooms in October 1980. Stanley developed DVT in his left leg because he sustained a fracture, which was properly casted, causing immobilization and because he was overweight and smoked cigarettes. He further testified that even if Stanley’s cast was applied too tightly, it was unrelated to the development of DVT. On cross-examination, Dr. Thompson testified that if a finger cannot be inserted between the cast and the patient’s skin the cast has been applied too tightly and that a tightly applied cast should be closely monitored every other day by the doctor.

On appeal, Mt. Sinai first contends that it was denied a fair trial when the trial court permitted plaintiffs to utilize prejudicial freehand drawings depicting the condition of Stanley’s leg from October 10, 1980, to October 17, 1980. Mt. Sinai argues that the exhibits are “subjective, argumentative, plaintiff-slanted, and misleading.” Mt. Sinai describes group exhibit No. 1 as follows: The top of the cast is depicted as being so tight that it caused the flesh at the top of the cast to severely swell and grossly bulge out over the top of the cast. The swollen portion of the leg was colored purple to give the appearance of tightness and compression. The bottom of the cast was drawn so that it appeared to fit flush up against the bottom of the toes, which were also drawn to appear extremely swollen, puffy and purple.

While the admission of demonstrative evidence is within the discretion of the trial, such evidence must help explain some relevant issue in the case. (Smith v. Ohio Oil Co. (1956), 10 Ill. App. 2d 67, 77, 134 N.E.2d 526, 530.) To curtail abuses, however, such a determination is subject to review as to the actual use made of the object. (Smith, 10 Ill. App. 2d at 77, 134 N.E.2d at 530-31.) If the exhibit is utilized for dramatic effect, or emotional appeal, rather than factual explanation useful to the reasoning of the jury, reversible error may result, not because of abuse of discretion, but because the actual use of the exhibit proved to be an abuse of the ruling. Smith, 10 Ill. App. 2d at 77, 134 N.E.2d at 531; see also Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1; Sehaffner v. Chicago & North Western Transportation Co. (1987), 161 Ill. App. 3d 742, 515 N.E.2d 298, aff’d (1989), 129 Ill. 2d 1, 541 N.E.2d 643; Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 388 N.E.2d 1298.

We find that group exhibit No. 1 helps explain the relevant issue of causation. The medical artist depicted Stanley’s leg based upon descriptions provided him by plaintiffs’ witnesses, Mary Ann Bugno, Richard Zolna and Joseph and Bernadette Jarosz. In fact, the drawings were edited until they fully complied with the witnesses’ descriptions. The above witnesses testified respectively as to the accuracy of group exhibit No. 1 from their personal observations as to the manner in which Stanley’s leg appeared on October 10, October 12, and October 17, 1980. Generally the witnesses verified that group exhibit No. 1 accurately depicted their personal observations at the time of their observations. Mt. Sinai never challenged the witnesses’ testimony on cross-examination, nor did it present any evidence to rebut the accuracy of the drawings. After considering the witnesses’ testimony, we conclude that the trial court did not err in finding the drawings were necessary to aid the jury in its understanding the adduced testimony. For brevity’s sake, since much of the testimony overlaps, we find it unnecessary to set forth each witness’ testimony in detail.

Moreover, we disagree with Mt. Sinai’s argument, that the drawings were utilized for dramatic effect or emotional appeal. So long as “demonstrative exhibits [are] relevant and actually explanatory, *** courts have *** allowed the exhibits regardless of their emotional effects.” (Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 365, 529 N.E.2d 581, 585.) Because the conditions of swelling, discoloration and the degree of tightness of Stanley’s cast depicted in the drawings were highly relevant to Mt. Sinai’s liability here, it was proper for the jury to be afforded a visual aid by which to more fully understand the witnesses’ testimony.

Mt. Sinai next contends that the trial court committed reversible error during voir dire by misstating the law as to plaintiffs’ burden of proof. During voir dire the trial court stated the following to the jury panel:

“It might be an opportune time to explain the different questioning of what we call the burden of proof.
The person who brings the action has the burden of proving the case.
In the civil case it is by a greater weight of the evidence, no matter how slight. In a criminal case for those who may have had a chance to sit on a criminal case and read the paper about what the greater weight or what the burden of proof is, the criminal case is beyond a reasonable doubt.
In this case that is not the test. In this case it would be by a greater weight of the evidence. An example, if you visualize a scale which is unbalanced and it is tipped even that much, the person who — the person or persons who bring the action has carried that burden of proving their case.
Now, that does not mean that the other party cannot overcome that, but just for that purpose so there is no question in your mind about that.”

Mt. Sinai argues that it was prejudiced by the above statement because the trial court’s reference to the slight tilting of the scales of evidence could only have served to minimize, in the minds of the jurors, plaintiffs’ evidentiary burden. Mt. Sinai further argues that the trial court misstated the law by suggesting that Mt. Sinai had the burden to overcome plaintiffs’ evidence. While we agree with Mt. Sinai that the trial court erred in minimizing plaintiffs’ burden of proof, we find any error to be harmless.

Mt. Sinai directs our attention to the recent decision in Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 33, 541 N.E.2d 643, 656-57, where our supreme court disapproved the “scale of justice” illustration and the reference that the evidence need only be “slight” in explaining to the jury a plaintiff’s burden of proof in a civil case. In Schaffner, the court found the error to be harmless because the trial court, in explaining to the prospective jurors the distinction between civil and criminal standards of proof, gave both an account that has been disapproved as favoring plaintiffs, as well as an account that has been disapproved as favoring defendants. The jury, in Schaffner, also was correctly instructed on the plaintiff’s burden of proof by means of Illinois Pattern Jury Instructions, Civil, No. 21.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 21.01).

Similarly, the alleged error here is harmless in nature because the jury received an instruction in the form of IPI Civil 2d No. 21.01, as to the meaning of the burden of proof in a civil case. Thus, any possibility that the jury was misled or prejudiced by the trial court’s remarks during voir dire was alleviated.

Mt. Sinai also argues that the trial judge’s statements concerning the differences in proof required in criminal and civil proceedings was inconsistent with Supreme Court Rule 234 (107 Ill. 2d R. 234), concerning the voir dire examination of prospective jurors. Rule 234 states, “Questions shall not directly or indirectly concern matters of law or instructions.” (107 Ill. 2d R. 234.) Mt. Sinai asserts that the comments to the jurors pertaining to the differing standards of proof violated that provision. Again relying on Schaffner, we do not interpret Rule 234 as narrowly as the interpretation afforded to it by Mt. Sinai. The rule further states, “[t]he court may acquaint prospective jurors with the general duties and responsibilities of jurors.” (107 Ill. 2d R. 234.) The trial judge’s comments were intended to serve the above purpose. Regardless, any error arising from the trial judge’s remarks did not prejudice Mt. Sinai because the jury was properly instructed on plaintiffs’ burden of proof prior to their deliberations.

Mt. Sinai next contends that it was not afforded a meaningful rebuttal of plaintiffs’ expert witness, Dr. Miller. We disagree.

During cross-examination, Dr. Miller was questioned regarding a treatise that he co-authored with Dr. David Abramson, a vascular specialist. The treatise contains a passage, written by Dr. Abramson, which supports Mt. Sinai’s theory that if a clot occurred, it was the result of “physical inactivity [or] immobilization of the limb as by a cast.” Dr. Miller testified that they erroneously omitted to include a firm, tight cast as one of the possible causes of a blood clot.

Mt. Sinai was permitted to call Dr. Abramson as a rebuttal witness to impeach Dr. Miller’s testimony that he and Dr. Abramson omitted that a “firm, tight cast” may cause blood clotting. Plaintiffs objected to his rebuttal testimony on the grounds that it would constitute an improper violation of the expert witness disclosure requirements under Supreme Court Rule 220 (107 Ill. 2d R. 220). Consequently, Dr. Abramson was limited to stating that no omissions were made in the treatise on the possible causes of blood clots and precluded from offering his opinion on the accuracy of the treatise.

The trial court was justified in limiting Dr. Abramson’s testimony here. Dr. Abramson was permitted to rebut Dr. Miller’s testimony. Any additional testimony from Dr. Abramson would have constituted an expert opinion as to the proper casting of Stanley’s leg and cause of Stanley’s blood clot in violation of Supreme Court Rule 220 (107 Ill. 2d R. 220).

Finally, Mt. Sinai contends that the trial court erred in permitting the jury to consider in plaintiffs’ issues instruction, plaintiffs’ liability theory premised upon Mt. Sinai’s failure to provide Stanley adequate instructions concerning signs and symptoms of adverse changes in his left leg. Mt. Sinai argues that allowing such consideration by the jury was reversible error because there was no evidence by which to support a causal connection between the lack of instructions and Stanley’s injury.

A plaintiff is entitled to have the jury instructed on every theory supported by the evidence. (In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 771-72, 481 N.E.2d 32, 36; Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98, 476 N.E.2d 1378, 1383; see also Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 285 N.E.2d 217; Schomer v. Madigan (1970), 120 Ill. App. 2d 107, 255 N.E.2d 620.) Elaine Bugno testified that on October 2, 1980, a temporary cast was applied to Stanley’s left leg and the only instructions that Stanley received from Mt. Sinai was that he elevate his leg. Dr. Pyati testified that each patient was to receive instructions when he received a cast, but that he had no independent recollection of whether Stanley received instructions as to the care and precautions that Stanley should have been aware of at the time his permanent cast was applied on October 10, 1980. Dr. Pyati further testified that his practice is to give oral instructions to patients as follows: that they keep the leg elevated; that they observe the toes and leg for swelling, discoloration, and the inability of movement; and that they take note of any unusual pain. If any of the above symptoms persist after elevating the leg, the patient is advised to return to the hospital.

Dr. Wood testified that it was the practice of Mt. Sinai technicians to instruct patients on the general care of the cast, whether it be “weight bearing, nonweight bearing,” to avoid bumping the cast on anything, and in the event that the cast loosens or becomes too tight, to return to the hospital.

Plaintiffs’ expert testified that the applicable standard of care here required explicit instructions to be given to Stanley, preferably in writing, and that the instructions should advise the patient to report any problems to the doctor, specifically those concerning swelling, discoloration or pain. As previously set forth, Dr. Thompson testified that he was unfamiliar with the applicable standard of care in Chicago cast clinics.

Based upon our review of the evidence, we hold that the liability theory at issue here was sufficiently supported by the evidence and therefore properly placed before the jury.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

      The record discloses that 35% of the population have a patent foramen ovale between their heart’s chambers.

       Justice Manning recused herself from the cause after oral argument.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. THOMAS, Defendant-Appellant.
    Second District
    No. 2-88-1200
    Opinion filed August 8, 1990.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, John R. Thomas, was convicted by a jury of the offense of robbery in violation of section 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1). Defendant now appeals, alleging that the prosecutor improperly exercised a peremptory challenge to keep a member of defendant’s racial group from serving on the petit jury. We affirm.

The complaint filed against defendant alleged that he forcibly took a red handbag from the victim, Dorothy Fowler. The purse contained $13.65. We note that the defendant is a black male, and the victim is female; however, the record does not establish the victim’s race.

Prior to voir dire examination, each prospective juror in defendant’s case completed a juror profile questionnaire. The questionnaire filled out by one prospective juror, Wanda T. Marshall, indicates that she was 25 years old, single, and the parent of one child. During voir dire, the trial court asked Marshall if she could serve as a fair and impartial juror in the defendant’s trial, and she responded affirmatively. Defense counsel then interviewed Marshall and posed the following question:

“Q. You yourself are black; my client is black. The victim is a woman. Is there anything about that set of circumstances that may prevent you from being fair and impartial in giving my client, Mr. Thomas, a fair trial?
A. No.”

Afterwards, the prosecutor began his interview of Marshall in the following manner:

“Q. It is Miss Marshall?
A. Yes.
Q. Miss Marshall, have you been married in the past?
A. No.
Q. I take it, you have one child?
A. Yes.
Q. How old is he?
A. Four.
Q. Is he your natural child?
A. Yes.”

Among the other questions the prosecutor asked Marshall was whether she would convict the defendant if the case against him were proved beyond a reasonable doubt. Marshall indicated that she would.

The prosecutor then exercised a peremptory challenge against Marshall, and defendant objected. Defense counsel stated to the court that the prosecutor was required to state his reasons for excluding Marshall because “she is the only black person, out of forty-some odd people that have already been traipsed up here as prospective jurors.” The prosecutor responded that, pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, “the defendant must first make a prima facie showing” of the discriminatory use of a peremptory challenge. The prosecutor noted his agreement with defense counsel’s position that a prima facie showing of discrimination had been made because the only black on the venire had been excused.

The prosecutor then proffered this explanation for excusing Marshall:

“The court is aware from my questioning that Miss Marshall is the first and only unwed mother we have as a prospective juror. *** My attitude in picking jurors, Judge, is to pick persons who are conservative, fair, impartial people. It is my perception as a practitioner and as an individual that persons who are unwed mothers may lack the type of moral fiber or may have certain inherent prejudices due to their relaxed views on that type of act or lifestyle, so as to, in my opinion, warrant them unsuitable in a criminal case.”

The prosecutor also stated that he felt Marshall was hesitant in answering his questions, but he restated that his “first and foremost rationale” for excusing Marshall was “her status as an unwed mother.”

Defense counsel responded that the prosecutor’s explanation indicated that Marshall was also improperly challenged with regard to her sex and marital status. He contended that the prosecutor’s explanation was “a cop-out to get out of the racial issue.” He further noted that Marshall “did not hesitate on hardly any questions” and that “she was emphatic as to her ability to remain fair and impartial as a juror.” The trial court responded:

“THE COURT: Well, gentlemen, I have heard both sides of this now and I feel what you say, [defense counsel] Sowa, is correct. She has indicated her willingness to serve. However, I do feel that [Assistant State’s Attorney] Busch has responded pursuant to Badson, [sic] and, as weak as you may feel his response is, I think it is sufficient to avoid the fact that it is purely on a racial basis.”

The court then denied the motion and allowed Marshall to be excused.

The jury ultimately returned a verdict of guilty. Defendant moved for a new trial on the basis that, inter alia, the prosecutor improperly exercised a peremptory challenge against a juror of defendant’s race. The trial court denied the motion and sentenced defendant to four years’ imprisonment. Defendant now appeals.

Initially, we note that the record on appeal did not originally contain the juror profile questionnaires completed by the prospective jurors, and they may not have been part of the record in the trial court. Defendant, subsequent to the filing of both parties’ briefs, sought and was granted leave to supplement the record on appeal with the questionnaires. In a supplemental brief, the State contends that leave to supplement the record was improperly granted because of the lateness of the request and that this court should strike the orders granting such.

Supreme Court Rule 329 (107 Ill. 2d R. 329) permits the amendment of a record where there are material omissions or inaccuracies or if the record otherwise is insufficient to present fully and fairly the questions involved. (People v. Span (1987), 156 Ill. App. 3d 1046, 1053.) One of the objects of Rule 329 “is to allow the record on appeal to be amended to *** settle controversies as to whether the record on appeal accurately discloses what occurred at trial.” (People v. Petty (1987), 160 Ill. App. 3d 207, 211.) However, where an amendment would be unfair to a party, the courts have refused to permit the amendment. (Span, 156 Ill. App. 3d at 1053.) Here, given the factual nature of the peremptory challenge issue, we conclude that it was necessary to add the questionnaires to the record, albeit tardy, in order for the issue to be fully and fairly decided on appeal; we do not find that the State was prejudiced by this and, thus, affirm our original order.

We now turn our attention to the merits of the peremptory challenge issue. In Batson v. Kentucky, the Supreme Court recognized that “the peremptory challenge occupies an important position in our trial procedures.” (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724.) The intentional exercise of such challenges to discriminate against jurors based on their race, however, violates the equal protection clause of the fourteenth amendment. (Batson, 476 U.S. at 91, 90 L. Ed. 2d at 84, 106 S. Ct. at 1720.) A defendant can make out a prima facie case of purposeful discrimination under Batson by showing that: (1) he belongs to a racial group capable of being singled out for differential treatment; (2) the State removed members of the defendant’s race from the venire by using peremptory challenges; and (3) these facts and any other relevant circumstances raise an inference of purposeful discrimination. (People v. Hope (1990), 137 Ill. 2d 430, 452.) The fact that all of the members of the defendant’s race have been excluded from the jury is relevant to this determination, although it is not in itself conclusive. People v. Jones (1988), 177 Ill. App. 3d 663, 668-69.

Here, the prosecutor did exercise a peremptory challenge against a juror of defendant’s racial group. At the Batson hearing, the prosecutor conceded that defendant had made a prima facie showing of discrimination. The concession that a prima facie showing had been made makes it unnecessary for us to examine whether other relevant circumstances raise an inference of purposeful discrimination.

Once a prima facie showing has been made, the burden shifts to the State to come forward with a race-neutral explanation for challenging black jurors which is related to the case to be tried. The prosecutor’s explanation need not rise to the level justifying a challenge for cause. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The burden on the prosecution is not a heavy one. The State is, however, required to articulate which facts formed the basis of the allegedly discriminatory act. People v. Harris (1989), 129 Ill. 2d 123, 184.

The trial court then must decide if the defendant has established purposeful discrimination. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.) The trial court’s findings in this context will only be reversed if they are against the manifest weight of the evidence. (Harris, 129 Ill. 2d at 175.) Trial judges are especially well suited to make this determination because they are familiar with local conditions and prosecutors and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one. People v. Evans (1988), 125 Ill. 2d 50, 67.

The prosecutor in the instant case explained that he exercised a peremptory challenge against Marshall not because she was black, but because she was an unwed mother. This status, the prosecutor opined, indicated that the witness lacked the “moral fiber” necessary to sit as a juror in a criminal case. We stress that the issue in this cause is not whether we agree with the prosecutor’s generalization regarding unwed mothers or whether we find it, in fact, an unfortunate and narrow-minded prejudice as argued by defendant. Instead, our task is to evaluate the trial court’s finding that this belief actually motivated the peremptory challenge and was not just a pretext for racial discrimination. See Harris, 129 Ill. 2d at 178.

Furthermore, the prosecutor’s belief does not need to be proved demonstrably true either in general or in regard to the particular witness excluded. These are merely two important factors that the trial court should consider in evaluating the legitimacy of the State’s explanation. (Harris, 129 Ill. 2d at 177-78.) The touchstone again is whether the prosecutor’s opinion about the group to which the witness belongs, correct or not, actually motivated the peremptory challenge or whether it was merely pretextual.

The trial court here concluded that the prosecutor had sufficiently “responded pursuant to Badson [sic].” The court recognized that defense counsel might have viewed the response as “weak,” but the court felt the explanation was “sufficient to avoid the fact that [the challenge was founded] purely on a racial basis.” We cannot conclude that the trial court’s finding, based on its assessment of the credibility of the prosecutor’s explanation, was against the manifest weight of the evidence.

Defendant argues that several factors indicate that the prosecutor’s stated rationale was merely pretextual. First, defendant notes that the prosecutor’s viewpoint is without merit with regard to unwed mothers in general and specifically with regard to Marshall. However, as we have already stated, whether the prosecutor’s explanation for the exercise of a peremptory challenge is well founded is but a factor in the central inquiry regarding whether the explanation is genuine or simply pretextual.

In People v. Harris, for example, one prospective juror was challenged because “she lived in Hyde Park, a neighborhood in Chicago whose residents were more scholarly and open to new ideas,” a group the prosecutor felt would be “less likely to base their findings of fact on the evidence.” (Harris, 129 Ill. 2d at 176.) The Illinois Supreme Court held that, while it might not agree with such a generalization, the trial court could have determined that the explanation was not pretextual. (Harris, 129 Ill. 2d at 178.) Here, the trial court also apparently did not embrace the veracity of the prosecutor’s belief, but it concluded that the peremptory challenge was, in fact, motivated by the prosecutor’s generalization about unwed mothers.

Second, defendant notes that the prosecutor did not explore the issue of unwed parenthood with any prospective juror except Marshall, the sole black on the venire. However, no other prospective juror indicated on the questionnaire that he or she was both unmarried and a parent. Thus, no pretextual inference can be derived from the prosecutor’s failure to ask other prospective jurors the same type of questions which were posed to Marshall.

Third, defendant notes that Marshall expressed her willingness to find defendant guilty if the prosecutor proved his case beyond a reasonable doubt. This is not dispositive. Though a minority venire person may otherwise possess all the traits the State seeks in a juror, he may possess an additional trait which makes him undesirable. Harris, 129 Ill. 2d at 180.

Finally, defendant contends that the prosecutor’s peremptory challenge violated not only defendant’s rights but also Marshall’s rights as well. Specifically, defendant contends that Marshall was discriminated against on the basis of her race and sex.

It is true that the Supreme Court has stated that “[rjacial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try,” but also the excluded juror as well. (Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718.) Here, we have concluded that the trial court could properly have found that the prosecutor’s explanation for challenging Marshall was not pretextual. In other words, the exercise of the peremptory challenge was not racially motivated. Defendant offers us neither explanation nor authority indicating that a different conclusion can be reached by analyzing the purported racial discrimination from the viewpoint of the prospective juror; nor does defendant cite any authority that he may advance a juror’s interest to support his own equal protection claim under Batson.

Moreover, the Batson procedure is designed to ferret out violations of the the equal protection clause, and Batson addresses only discrimination based on race, not sex. (People v. Crowder (1987), 161 Ill. App. 3d 1009, 1013; see also United States v. Hamilton (4th Cir. 1988), 850 F.2d 1038, 1042; State v. Adams (La. App. 1988), 533 So.2d 1060, 1063.) Defendant cites no cases in which the Batson procedure has been applied to purported sexual discrimination. While the underrepresentation of one gender on the venire might violate the sixth amendment’s requirement that the venire be composed of a fair cross-section of the community (Duren v. Missouri (1979), 439 U.S. 357, 360, 58 L. Ed. 2d 579, 584, 99 S. Ct. 664, 666), the fair cross-section requirement does not apply to the petit jury (Holland v. Illinois (1990), 493 U.S. 474, 478, 107 L. Ed. 2d 905, 915, 110 S. Ct. 803, 806). Thus, we find no authority which would allow defendant to raise a challenge of sex-based discrimination in the selection of the petit jury.

Accordingly, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE McNAMARA JUSTICE RAKOWSKI,

text:
    BURTON KAMINSKY, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF WHEELING, ILLINOIS, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-89-2662
    Opinion filed June 29, 1990.

      RAKOWSKI, J., dissenting in part.
    Barbara Bennington Hogberg, of Hoffman Estates, for appellant.
    Klein, Thorpe & Jenkins, of Chicago, and James A. Rhodes, of Wheeling (Arthur C. Thorpe and Patrick A. Lucansky, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

In a Rule 23 order (107 Ill. 2d R. 23), this court previously found that plaintiff Burton Kaminsky was wrongfully discharged from the police force by defendants, the Board of Fire and Police Commissioners of the Village of Wheeling (Board), Maurice Weitlauf and John A. Sheik, Jr., commissioners; and Michael Hager, chief of police. On remand, the Board imposed consecutive 25-day suspensions for each of two charges. Plaintiff appealed, and the trial court reduced the suspension to one 30-day sanction, and upheld the Board’s determination of the amount of back pay due to plaintiff. On appeal, plaintiff contends that the back-pay determination is erroneous because it included a deduction for wages earned during the period of wrongful discharge; because it did not include extra compensation for holidays and vacations; because it did not include compensation for overtime and extra duty pay he might have earned; and because it did not include interest.

Defendants cross-appeal, contending that the trial court erred in reducing the penalty from two 25-day suspensions to one suspension of 30 days, where section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—17) permits consecutive 30-day suspensions for each violation.

On January 10, 1985, the Wheeling chief of police filed eight charges against plaintiff with the Board. The Board subsequently struck two of the charges. Following a hearing, on March 6, 1985, the Board found plaintiff guilty of five of the six remaining charges. The charges involved: On July 17, 1984, at 11:56 p.m., plaintiff did not respond as a back-up officer to a prowler call after acknowledging a radio dispatch; two days later, on July 20, 1984, at 2:52 a.m., plaintiff did not respond as a back-up officer in a timely manner for an activated burglar alarm, delaying arrival until 14 to 20 minutes after the principal assigned officer arrived; on November 6, 1984, plaintiff spent 68 minutes idle without notifying the dispatcher, when lunch break is only 30 minutes; on November 7, 1984, plaintiff spent 77 minutes idle for lunch break without notifying the dispatcher; and on September 16, 1984, plaintiff failed to respond to a fire when he was in the immediate vicinity and was unavailable without notifying the dispatcher.

The Board discharged plaintiff, effective March 13, 1985. On review, the trial court upheld the Board’s decision.

On appeal, this court reversed. (Kaminsky v. Board of Fire & Police Commissioners (1st Dist. 1986), No. 1 — 86—0608 (unpublished order under Supreme Court Rule 23).) We held that a finding of guilt on the September 16, 1984, fire alarm charge was against the manifest weight of the evidence. We held further that reprimand was the most severe penalty to be imposed for the two charges of taking an excessive lunch break.

The two remaining charges we addressed were the July 18 and 20, 1984, failures to respond as back-up officer. We upheld the guilty findings, but found that discharge was unwarranted. We noted that the Department took no action against plaintiff after the two July incidents. The court also pointed to plaintiff’s HVz years of service without reprimand, numerous commendations, and nine officers testifying in mitigation on his behalf. We remanded to reconsider the penalty.

On March 2, 1987, plaintiff was reinstated in his job. On September 17, 1987, the Board heard the case on remand. It imposed a 25-day suspension for the July 18, 1984, incident and a 25-day suspension for the July 20, 1984, incident, with the two suspensions to run consecutively. The Board found that $60,551.95 in gross wages was due as back pay for the period March 13, 1985, to March 2, 1987. The Board then set off $17,209.40 which plaintiff earned from other employment during the period of his discharge. The Board added to the wages due merit increases which it believed plaintiff would have received, and longevity pay.

Plaintiff sought review of the Board’s decision on remand, seeking a lesser period of suspension and an increased back-pay award. On May 17, 1989, the trial court reduced the suspension to one 30-day period, but upheld the Board’s back-pay award. Both sides now appeal to this court.

We first address plaintiff’s contentions on appeal. Plaintiff initially contends that the back-pay award is improper because the Board deducted wages earned by plaintiff from other employment during the period of wrongful discharge. We hold that plaintiff has waived this issue. At the hearing before the Board on remand, plaintiff not only failed to contest the issue, but indicated he expected the setoff. The Board requested, and plaintiff produced, tax forms showing these earnings during the period of discharge. The Board introduced the forms into evidence, without objection from plaintiff. Plaintiff’s counsel merely argued that the setoff should not include amounts withheld for social security purposes:

“PLAINTIFF’S COUNSEL: One brief argument regarding the evidence of wages earned by Officer Kaminsky during the time that he was not working for the Village of Wheeling. We would ask that you not consider *** the amount that was withheld for Social Security by the separate employers, not be considered as income earned by Officer Kaminsky because he derived no benefit from those monies; and he will never derive any benefit from those monies; and so it is our position that they shouldn’t be considered in mitigation.”

Plaintiff will not be permitted to raise this issue for the first time on appeal. See Leffler v. Browning (1958), 14 Ill. 2d 225, 151 N.E.2d 342; Village of Hillside v. John Sexton Sand & Gravel Corp. (1983), 113 Ill. App. 3d 807, 447 N.E.2d 1047; Del Rivero v. Cahill (1979), 71 Ill. App. 3d 618, 390 N.E.2d 355.

Plaintiff next contends that the Board erred in computing his back-pay award when it denied his compensation for holidays and vacation pay. The Board’s decision on remand expressly states that the gross wages plaintiff would have earned during the discharge period includes wages “for days worked, vacation and holidays.” (Emphasis added.) No error occurred.

Plaintiff also contends that the Board erred in not including overtime and extra duty pay in the award. Plaintiff testified that from 1981 through 1984 he earned from $270 to $1,382 per year for overtime; and $240 to $455 per year in extra duty pay. The Board’s decision on remand states that plaintiff is not entitled to any pay for overtime or extra duty. We agree with the Board that the collective bargaining agreement “makes no guarantee of overtime or extra duty assignments and [plaintiff has failed to present any competent evidence establishing [that] he is entitled to overtime or extra duty pay.” Plaintiff’s evidence was speculative and not a basis for an award. The Board correctly noted that there was no evidence with regard to how overtime is assigned or whether plaintiff would in fact have been assigned overtime or extra duty during that period of time.

Plaintiff finally contends that the Board erred in not awarding interest on the back pay. The argument was not made before the Board or before the trial court, and thus we shall not consider it. See First National Bank & Trust Co. v. Aluminum Coil Anodizing Corp. (1980), 86 Ill. App. 3d 842, 408 N.E.2d 477 (issue of interest in ■judgment waived where it was not raised before trial court).

We now address the cross-appeal filed by defendants. The Board argues that the statute permits a maximum of one 30-day suspension for each single act of misconduct. The statute provides:

“Except as hereinafter provided, no officer *** shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. *** The Board *** shall conduct a fair and impartial hearing of the charges ***. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 10-2.1-17.)

Clearly the statute does not require a single 30-day-or-less term of suspension for each individual charge. One suspension term can be imposed for multiple charges.

We need not determine, however, whether under different circumstances the statute would permit the Board to impose multiple consecutive 30-day suspensions for different charges or violations because we are not faced with single acts of misconduct in this case. Under the record before us, we find that the Board always treated the misconduct as a course of misconduct.

Significantly, our December 23, 1986, Rule 23 order states that “the board discharged plaintiff for ‘a pattern of non-responsiveness and unavailability in duty situations.’ ” (Emphasis added.) This court, as did the Board, looked at the entire course of conduct. We found the penalty too harsh.

The original Board decision also recited a conclusion which demonstrates the penalty was imposed as a result of the entire course of conduct:

“The Board further finds that the conduct of the [plaintiff], which formed the basis of the findings of guilt hereinabove set forth, constitutes a substantial shortcoming which renders his continuance as an officer of the Wheeling Police Department detrimental to the discipline and efficiency of the service of the Department and is good reason for the [plaintiff no longer holding his position as an officer with the Wheeling Police Department.”

Undoubtedly the Board would not have found a substantial shortcoming and conduct so detrimental to the police department as to require the penalty of discharge for any one of the charges alone, such as taking a long lunch or responding to a call too slowly. It was the entire course of related conduct, with all five charges revolving around unavailability and not responding properly to calls, which the Board believed demanded discharge.

Similarly, the initial trial court order issued on February 11, 1986, treated the acts as one course of misconduct:

“[T]he Board *** was justified in finding that the plaintiff’s conduct was a substantial shortcoming which rendered his continued employment detrimental to the discipline and efficiency of the police department and was something which the law and public opinion would recognize as good cause for his discharge. Further, the decision was not arbitrary nor was it unreasonable, punitive, or excessive. The evidence established the plaintiff failed to respond to two (2) calls, responded to one (1) call only after that call had been concluded without offering just cause for his late response, took over an hour lunch twice, during which time he pretended to be available for duty when, in fact, he was not and, finally, that plaintiff failed to respond to an officer’s call for assistance at a fire call when he was practically next door at the time.”

We hold that, under the facts and circumstances in the present case, the Board may only impose one suspension for 30 days or less. The imposition of two 25-day suspensions is impermissible here. Thus, we affirm the trial court determination that one 30-day suspension is appropriate. Again, we do not decide whether under different circumstances the statute would permit, as a matter of law, multiple consecutive terms of suspension, each for 30 days or less.

For the foregoing reasons, the judgment of the circuit court of Cook County modifying the decision of the Board of Police and Fire Commissioners is affirmed in all respects.

Judgment affirmed.

LaPORTA, P.J., concurs.

JUSTICE RAKOWSKI,

dissenting in part:

I do not agree that the plaintiff has waived his claim that his back-pay award was improper. Neither the cases cited by the majority nor the reasoning behind the doctrine of waiver supports its application to a situation, as exists here, where the party being charged with waiver did not bear the burden of raising the issue.

The Board first determined that gross wages due plaintiff were $60,551.95 and that his gross earnings during the suspension period were $17,209.40 and then found “that the law in the State of Illinois is that Officer Kaminsky is entitled to gross wages less any time for suspension and less any outside earnings.” (Emphasis added.) The above-pleaded recitation of Illinois law is incorrect. It is well settled that: “The employer has the burden of showing that the employee could or did have other earnings subsequent to the wrongful discharge and that those earnings stemmed from employment incompatible with the employment from which he was wrongfully discharged.” (Emphasis added.) (Bressler v. Board of Education of Chartered School District No. 150 (1977), 69 Ill. 2d 191, 199, 370 N.E.2d 1050, relying on People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470.) While the plaintiff does not dispute the Board’s computations of gross wages or the amount he earned during the discharge period, he disputes both in the trial court and on appeal that the record contains any facts which would support an offset.

I agree. Both Bressler and Bourne are directly on point and provide for such an offset only where the earnings during discharge stem from incompatible employment. The record sub judice neither contains a finding of incompatibility nor reveals any evidence which would lead to such a finding. It is clear that the Board did not correctly follow Illinois law.

The majority hold that plaintiff will not be permitted to raise this issue for the first time on appeal (citing Leffler, 14 Ill. 2d 225; Sexton Sand & Gravel Corp., 113 Ill. App. 3d 807; Del Rivero, 71 Ill. App. 3d 618). These cases are distinguishable. In Del Rivero, not only did the plaintiff fail to raise the issue at the administrative level, he also failed to raise it in his complaint for administrative review. In both Sexton Sand & Gravel and Leffler, the issues were defenses that were not raised at the administrative level. In this case, incompatibility was a defense of the employer, not plaintiff. Further, in all three of these cases, the party who attempted to argue an issue on appeal also had the burden of raising it in the administrative action. In this case, the burden fell on the employer to prove that plaintiff’s employment during discharge was incompatible. Until the employer produced its evidence, plaintiff had no reason to raise any defense.

Further, the majority also states that plaintiff “expected the set-off.” (201 Ill. App. 3d at 265.) While the record does not contain any such statement, the majority reasons that such could be implied from plaintiff’s counsel’s failure to object when evidence of plaintiff’s earnings during the discharge period was introduced. The plaintiff, however, did not dispute these calculations and would, therefore, have no reason to object.

Nor does public policy support an application of waiver in this case. The waiver rule exists because of “the demands of orderly procedure and the justice of holding a party to the results of his own conduct where to do otherwise would surprise his opponent and deprive him of an opportunity to contest an issue in the tribunal which by law is supposed to decide it.” (Leffler, 14 Ill. 2d at 228; see also Sexton Sand & Gravel, 113 Ill. App. 3d at 817.) Since the employer had the burden of proving the incompatibility of plaintiff’s employment when it presented its defense during the administrative hearing, it cannot rightfully claim to be surprised by plaintiff’s issue on appeal or that it was deprived of the opportunity to contest the issue at the administrative level. It rings hollow indeed for a party to argue an inability to contest those facts that it had the burden of proving.

Additionally, common sense dictates that one party does not waive his rights by not pointing out that the other side failed to meet its burden. Administrative hearings are already sufficiently protracted without imposing upon a party a duty to comment upon his opponent’s failure to meet its burden of proof. Where a party fails to meet its burden, it is precluded from relief, and this fact is not altered by his opponent’s response or lack thereof.

Finally, even if the doctrine of waiver could apply to this case, to allow its application would be improper. The waiver rule “is not a rigid or inflexible one, and, where injustice might otherwise result, a reviewing court may consider questions of law not passed upon by an administrative agency. [Citations.]” (Wadlington v. Mindes (1970), 45 Ill. 2d 447, 453, 259 N.E.2d 257; see also Cotovsky v. Department of Registration & Education (1982), 110 Ill. App. 3d 417, 423, 442 N.E.2d 520.) In this case, the Board first improperly fired Kaminsky, then improperly suspended him, and now improperly challenges full payment of court-ordered restitution. Injustice has already resulted from the Board’s action. I see no reason to allow one more injustice simply on the grounds that Kaminsky failed to demand that the Board meet its own burden of proof.

In sum, all plaintiff had to prove to entitle him to a full back-pay award was the amount of money he would have earned during the improper discharge period. This he had done. In order to establish a set-off, his employer had the burden of proving incompatibility. This it has not done. Neither the majority opinion nor the defendant’s brief cites any authority for the proposition that a party who has not proven his entitlement to relief can somehow succeed merely because the opponent fails to comment upon the issue.

I would affirm in part and reverse in part and remand, with directions.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL DREW, Defendant-Appellant.
    First District (1st Division)
    No. 1-86-2088
    Opinion filed June 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Sara Dillery Hynes, and Sari Slivnick, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, Samuel Drew, was indicted for the offenses of theft and possession of a stolen motor vehicle. Following a jury trial, he was acquitted on the theft charge; however, the jury was “deadlocked” on the possession charge. The trial court declared a mistrial, and subsequently, a jury was selected for the defendant’s second trial. After the jury was sworn, the defendant moved to dismiss the jury on the basis that black prospective jurors were systematically excluded from serving on the jury because of their race. The defendant argued that the State used six peremptory challenges during voir dire. Three peremptory challenges were used to excuse the only black potential jurors, a fourth was used to exclude a black potential alternate juror and two were used against white potential jurors. The State argued that no systematic exclusion occurred and that only five peremptory challenges were used. Three were used to exclude black potential jurors and two were used to exclude white potential jurors. However, the record does reveal that one was used to excuse a black potential alternate. One black person was selected and sworn as an alternate juror. The trial court acknowledged that the only three black potential jurors presented for consideration were excused by the State. However, the court stated that it did not see any systematic exclusion based solely on race. Therefore, the defendant’s motion to dismiss the jury was denied.

The cause proceeded to trial on the possession of a stolen motor vehicle charge. Regina Roy Curry, owner of the stolen motor vehicle, testified that in November of 1985, she reported to the police that her 1979 Oldsmobile Cutlass Supreme was missing. She further testified that she never gave anyone permission to move her car. Officer John Valenti testified that on January 18, 1986, he saw a brown 1979 Cutlass parked in an alley with a license plate attached which was registered to Samuel Drew for use on a Volkswagon. When Officer Valenti transmitted the vehicle number which appeared on the dashboard into his computer, he discovered that the vehicle was stolen. After placing the car under surveillance, on January 22, 1986, the officer saw the defendant enter the car. He stopped the defendant and placed him under arrest.

The State rested after it presented certified copies of Regina Roy’s vehicle registration and license renewal issued for a 1979 Oldsmobile and a certified copy of the vehicle registration issued to Samuel Drew for a 1967 Volkswagen. Thereafter, the defendant was found guilty of possession of a stolen motor vehicle and sentenced to an extended term of 12 years’ imprisonment due to his prior criminal convictions. In his post-trial motion the defendant renewed his objection to the systematic exclusion of blacks from the jury. The defendant now appeals his conviction, contending that his conviction for possession of a stolen motor vehicle should be reversed because the statute under which he was convicted is unconstitutional. The defendant further contends that his cause of action should be remanded to the trial court for a Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, hearing since the State used its peremptory challenges to exclude all blacks from the jury.

The defendant initially argues on appeal that his conviction for possession of a stolen motor vehicle should be reversed since the possession of a stolen motor vehicle statute, effective January 1, 1985, reclassifying all convictions under section 4 — 103(b) as Class 2 felonies, is unconstitutional inasmuch as it violates the constitutional guarantees of proportionate penalties and due process. See Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(b).

We acknowledge that prior to the Illinois Supreme Court’s recent decision in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, there was a split among the appellate courts regarding the constitutionality of the possession of a stolen motor vehicle statute. (See People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890; People v. Ambrose (1988), 171 Ill. App. 3d 87, 525 N.E.2d 536; People v. Smith (1987), 159 Ill. App. 3d 156, 512 N.E.2d 71; People v. Carlyle (1987), 159 Ill. App. 3d 964, 513 N.E.2d 61.) However, in Bryant the supreme court succinctly disposed of this issue by concluding:

“We believe that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4 — 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4 — 103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” Bryant, 128 Ill. 2d at 457.

The defendant finally argues that although one black person was sworn as an alternate juror, the State used six peremptory challenges to systematically exclude all of the black prospective jurors presented from serving on the jury, resulting in an all white jury. Therefore, defendant contends that this cause should be remanded to the trial court to conduct a hearing in accordance with the United States Supreme Court decision in Batson (476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712). The defendant maintains that this hearing would provide the State with an opportunity to rebut the defendant’s prima facie showing of racial discrimination occurring during voir dire. The State argues that since the defendant did not object to its use of peremptory challenges until after the jury was sworn, he has waived his Bat-son issue since waiver occurs where the defendant has failed to raise a Batson issue until after the jury has been sworn. The State further argues that a black alternate was selected to serve on the jury, and the trial court correctly held that a systematic exclusion of black jurors was not shown by the defendant.

In Batson (476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723), the United States Supreme Court held “that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Prior to the court’s decision in Batson, it was very difficult to establish a prima facie case of discrimination since the defendant was required to show that the State had engaged in a pattern of excluding blacks from juries because of race in a series of cases “over a period of time,” in order to establish a prima facie case of discrimination. (See Swain v. Alabama (1965), 380 U.S. 202, 227, 13 L. Ed. 2d 759, 776, 85 S. Ct. 824, 839.) After the court’s decision in Batson, there was some confusion as to the applicability of Batson. In Allen v. Hardy (1986), 478 U.S. 255, 258, 92 L. Ed. 2d 199, 204, 106 S. Ct. 2878, 2879-80, the Court concluded that “Batson should not be applied retroactively on collateral review of convictions that became final before [the Court’s] opinion was announced.” The court further clarified its position in Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716, when it held that the rule announced in Batson should apply retroactively to all cases which had been pending on direct review or were not yet final at the time Batson was decided.

In order to establish a prima facie case of discrimination, Batson requires that the defendant must first show that the prosecutor exercised his peremptory challenges to exclude members of a cognizable racial group from the venire and the defendant must show that he is a member of that group. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) Once the defendant has made this showing, he may then “rely on the fact *** that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723, quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 97 L. Ed. 1244, 1247-48, 73 S. Ct. 891, 892.) The defendant must then demonstrate that these facts and other relevant circumstances raise an inference that the prosecutor used those peremptory challenges to exclude the veniremen from the petit jury because of their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; Avery, 345 U.S. at 562, 97 L. Ed. at 1248, 73 S. Ct. at 892; People v. Mahaffey (1989), 128 Ill. 2d 388, 412, 539 N.E.2d 1172.

It is well settled that in determining whether a defendant has established a prima facie case of purposeful discrimination in the prosecutor’s exercise of peremptory challenges, the trial court must consider all relevant circumstances and not solely the number of blacks peremptorily challenged. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; Mahaffey, 128 Ill. 2d at 413; People v. Evans (1988), 125 Ill. 2d 50, 64, 530 N.E.2d 1360; People v. Young (1989), 128 Ill. 2d 1, 19, 538 N.E.2d 453.) The relevant circumstances include:

“ ‘[A] “pattern” of strikes against black jurors; “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges” [citation]; the disproportionate use of peremptory challenges against blacks [citations]; the level of black representation in the venire as compared to the jury [citations]; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations] ***.’ ” (People v. Holman (1989), 132 Ill. 2d 128, 173, 547 N.E.2d 124, quoting Evans, 125 Ill. 2d at 63.)

(See also People v. Harris (1989), 129 Ill. 2d 123, 172-73, 544 N.E.2d 357; People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351.) The trial judge may also consider the conduct of the prosecutor in previous cases. Holman, 132 Ill. 2d at 173; Mahaffey, 128 Ill. 2d at 414.

Pursuant to the instructions set forth in Batson, once the defendant has established a prima facie case of discrimination, the State must then meet its burden of providing a neutral explanation for excluding each black venireperson. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723-24.) This burden cannot be met by the State with a simple assertion that the peremptory challenges were based upon the assumption that the venirepersons would be sympathetic towards the defendant because they share the same race. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Nor can the State rebut a prima facie case of discrimination with a mere assertion that it does not know why it exercised its peremptory challenges or that it did not have a discriminatory motive. Harris, 129 Ill. 2d at 181.

After the State has provided its reasons for striking the venirepersons, it is the trial judge’s responsibility to determine whether the State’s explanations are sufficient to rebut the defendant’s prima facie case of purposeful discrimination. (Harris, 129 Ill. 2d at 174.) The trial court’s finding must be given great deference by a court of review since its determination is a factual matter based largely on the question of credibility. (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 88 n.21, 106 S. Ct. at 1724 n.21; People v. Brisbon (1989), 129 Ill. 2d 200, 229, 544 N.E.2d 297.) The trial judge, who is presumably familiar with local conditions and prosecutors, will draw upon his power of observation and judicial experience in distinguishing whether there exists a true case of discrimination or a false one. (People v. Andrews (1989), 132 Ill. 2d 451, 463, 548 N.E.2d 1025; Evans, 125 Ill. 2d at 67.) The trial court’s finding will only be reversed if it is against the manifest weight of the evidence. McDonald, 125 Ill. 2d at 199; Brisbon, 129 Ill. 2d at 231.

In the present case, the record reveals that the defendant is a black man and the prosecutor used four peremptory challenges to remove members of the defendant’s race. Three were used to exclude black veniremen and one was used to challenge a black alternate. While the State notes that one black alternate was selected to serve on the jury, it is well established that a racial group does not have to be completely excluded to prove discrimination. (See People v. Colley (1988), 173 Ill. App. 3d 798, 807, 523 N.E.2d 223; People v. Johnson (1987), 159 Ill. App. 3d 991, 513 N.E.2d 852; People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107.) Moreover, our supreme court has held that it is unconstitutional to exclude even one minority venireperson based on race and such actions would require this court to reverse the defendant’s conviction. Harris, 129 Ill. 2d 123; McDonald, 125 Ill. 2d at 200.

At the conclusion of voir dire and in his post-trial motion the defendant moved to dismiss the jury on the grounds that the prosecutor had systematically excluded all of the black veniremen. Therefore, on appeal, the defendant contends that his cause should be remanded to the trial court for a Batson hearing. The State argues that the defendant's case should not be remanded for a Batson hearing since a waiver of this issue occurred when the defendant did not object to the State’s use of peremptory challenges until after the jury was sworn. The State is correct in its argument that challenges to the composition of a jury must be raised before the jury is sworn. (See Evans, 125 Ill. 2d at 61; People v. Gaines (1981), 88 Ill. 2d 342, 359, 430 N.E.2d 1046.) A timely objection before the jury is sworn provides the trial court with an opportunity to conduct a hearing, while all venirepersons are present and before the trial begins. (Andrews, 132 Ill. 2d at 457.) However, it is also true that the waiver doctrine applies to the State as well as to the defendant. Andrews, 132 Ill. 2d . at 458; People v. O’Neal (1984), 104 Ill. 2d 399, 407, 472 N.E.2d 441.

In the instant case, the State did not argue the untimeliness of the defendant’s objection to the use of peremptory challenges when the defendant raised this issue at the conclusion of voir dire and in his post-trial motion. We, therefore, conclude that the State has waived its argument regarding the timeliness of the defendant’s objection to the State’s exercise of peremptory challenges since it failed to raise this issue at trial. See Harris, 129 Ill. 2d at 171; Colley, 173 Ill. App. 3d at 806.

In light of Batson, we remand this case to the circuit court of Cook County to conduct a hearing in accordance with the guidelines set forth in Batson on the defendant’s assertion that the State systematically discriminated against blacks in its exercise of peremptory challenges. Upon remand, the trial court will allow the defendant to present evidence in support of his claim of unconstitutional discrimination in the prosecutor’s exercise of peremptory challenges. If the trial court determines that the defendant has established a prima facie case of purposeful discrimination, the trial court must then allow the State an opportunity to come forward with nonracial reasons for exercising its peremptory challenges against black venirepersons. The explanation must be clear and reasonably specific. (Batson, 476 U.S. at 98 & n.20, 90 L. Ed. 2d at 88-89 & n.20, 106 S. Ct. at 1723-24 & n.20.) Moreover, it will not be considered as a race-neutral explanation if the State included white veniremen having similar characteristics and the State does not provide any meaningful characteristics that distinguishes the white venirepersons that were retained from the black venirepersons who were excluded. (People v. Mack (1989), 128 Ill. 2d 231, 239, 538 N.E.2d 1107; McDonald, 125 Ill. 2d at 199.) At the conclusion of the State’s explanations, the trial court must then make findings of fact and conclusions of law as to whether the State has rebutted the defendant’s prima facie case of discrimination (Holman, 132 Ill. 2d at 170; Harris, 129 Ill. 2d at 169), and its conclusion must be based on the reasons articulated by the State. Harris, 129 Ill. 2d at 184.

If the trial court determines that the State has failed to rebut the defendant’s prima facie case of purposeful discrimination, then a new trial shall be ordered. If a new trial is not required, in light of People v. Bryant, discussed previously, the defendant’s conviction and sentence will be reinstated.

For the reasons stated above, we remand this case to the circuit court of Cook County for a Batson hearing. Dependent upon the outcome of the Batson hearing, the defendant’s conviction and sentence will be affirmed or he will be granted a new trial.

Affirmed in part and remanded with directions.

BUCKLEY, P.J., and O’CONNOR, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TED WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1-86-2714
    Opinion filed June 29, 1990.
   The above opinion was withdrawn and republished at 205 Ill. App. 3d 715.