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Docket No. 98609.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL RIVERA, Appellant. Opinion filed November 29, 2007.

JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.

OPINION Defendant, Michael Rivera, was charged in the circuit court of Cook County with two counts of first degree murder. Following a jury trial, defendant was found guilty and was subsequently sentenced to 85 years' incarceration in the Illinois Department of Corrections. Defendant appealed, arguing, that (1) the trial court erred when it sua sponte raised a reverse-Batson (see Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)) challenge to his use of a peremptory challenge during jury selection; (2) the procedure resulting in the imposition of his extended-term sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) the procedure resulting in the imposition of his extended-term sentence violated his right to a jury

trial as guaranteed by the Illinois constitution. A divided appellate panel rejected those contentions and affirmed defendant's conviction and sentence. 348 Ill. App. 3d 168. We granted the plaintiff's petition for leave to appeal. 210 Ill. 2d R. 315. When the matter was initially before this court, defendant advanced multiple arguments, all of which were merely facets of the same Batson and Apprendi arguments defendant raised below. Specifically, defendant submitted that (1) trial judges do not have third-party standing to raise Batson challenges sua sponte; (2) the trial court's sua sponte Batson challenge to defense counsel's peremptory strike of juror Deloris Gomez was incompatible with the three-step Batson process; (3) the trial court erred in proceeding to the second step of the Batson process where no inference of a prima facie case of discrimination had been established; (4) the trial judge erred in his ultimate determination that defense counsel discriminated against juror Gomez; (5) the trial court's improper denial of defense counsel's peremptory strike of juror Gomez was reversible error; (6) the trial court's "violation of state statutory and constitutional guarantees to jury trial" are not amenable to harmless-error review; (7) Apprendi violations are not subject to harmless-error review; and (8) Apprendi violations in this case are not harmless beyond a reasonable doubt. Upon our initial consideration of this matter, we held that a trial court has the authority to raise a Batson issue sua sponte, but "it may do so only when a prima facie case of discrimination is abundantly clear." People v. Rivera, 221 Ill. 2d 481, 515 (2006). We stated, when a court acts sua sponte, "the trial court must make an adequate record consisting of all relevant facts, factual findings, and articulated bases" for its finding of a prima facie case. Rivera, 221 Ill. 2d at 515. We concluded that the record before us did not reveal a prima facie case of racial discrimination, "if indeed that *** was the basis for the trial court's sua sponte action" (Rivera, 221 Ill. 2d at 515), as the State then argued (see Rivera, 221 Ill. 2d at 511 ("the State asserts that `the trial court's remarks make it clear that the court's sua sponte reverseBatson challenge was grounded solely on *** race' ")). We remanded this cause to the circuit court for a hearing on the matter of the existence of a prima facie case of discrimination, urging the trial judge to include in the record any omitted evidence pertinent to that question and to articulate proper findings of fact and conclusions of -2-

law with respect to the threshold question of a prima facie case of discrimination, specifying, in particular, what kind of discrimination the judge believed was at issue, i.e., race, gender, or combined racegender. Because of our interim disposition, we did not address defendant's other issues. The hearing in question has since been conducted, the trial judge having stated on the record that he believed a prima facie case of gender discrimination was evident when defense counsel sought to excuse juror Deloris Gomez by peremptory challenge. The matter now returns to this court for further consideration. Pertinent facts prior to remand were fully set forth in our previous opinion. We reiterate facts as necessary to provide a framework for our disposition, beginning with the issue that resulted in remand. During jury selection, defense counsel questioned juror Deloris Gomez, a business office supervisor at Cook County Hospital's outpatient orthopedic clinic. In the course of that questioning, Gomez acknowledged that Cook County Hospital is known for the treatment of gunshot victims and, as a part of her employment at the clinic, she has contact with patients, "checking them in." Gomez said her interaction with the victims of violent crime would not affect her ability to serve as a juror in the case. Following voir dire, and apparently in the presence of Gomez and other prospective jurors, defense counsel announced his intention to use his fourth peremptory challenge against Gomez, as the following excerpt from the transcript indicates: "MR. DECKER [defense attorney]: Your Honor, with thanks, we would ask to excuse Mrs. Gomez. THE COURT: I'm going to ask you to remain, Mrs. Gomez. I'm going to ask counsel to join me, if the court reporter will join me, and the defendant will join me in chambers. Excuse me, ladies and gentlemen." In chambers, the court directed defense counsel to "kindly articulate a basis of why you are excusing Ms. Gomez." Defense counsel protested, "The court has done it on its own motion sua sponte." The trial court responded: "I will do it. It is the citizen's right to sit as a juror, and I will implicate myself sua sponte if I feel

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somebody's rights are being impinged upon ***." Defense counsel then complied with the court's directive, responding: "Mrs. Gomez has a connection to a hospital that on a daily basis probably sees more gunshot victims than any other hospital in the world ***. Given that fact that she's in the orthopedic section, I think on a daily basis even though she's a supervisor, even though she's not a rehabilitative nurse, she on a daily basis sees those victims who are victims of violent crime. For those reasons it constrains me. I know she has some kind of Hispanic connection given her name. I'm pulled in two different ways. For those reasons I asked that the

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