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14 September 2000

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JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Brenda Jones, appeals from orders of the trialcourt granting judgment in favor of defendants, Rockford MemorialHospital (Rockford) and Dennis F. Fancsali, M.D., and denyingplaintiff's posttrial motions. This appeal does not involvedefendant Fancsali. We affirm.

Brenda Jones, as administrator of the estate of ChesterBailey, brought suit against Rockford Memorial Hospital and Dr.Dennis Fancsali, alleging multiple counts of wrongful death andexpenses to the estate. Following a jury trial, the court entered judgment against Jones and in favor of Rockford and Fancsali on allcounts. Jones's posttrial motion was denied. This appealfollowed.

Jones's only contention on appeal is that the trial courterred when it allowed Rockford to exclude an African-Americanvenireman from the jury. According to Jones, Rockford wasmotivated by a discriminatory animus when it peremptorily excusedNorman Pickett as an alternate juror.

Early in his questioning of Mr. Pickett, counsel for Rockfordstated, "Brenda Jones obviously is black. She's right there." Jones's counsel asked to approach the bench and objected "to anyinquiry from [sic] a prospective juror on the subject of racialprejudice." Following argument, the court overruled the objectionand allowed "very, very limited" questioning on the point. Rockford's counsel then concluded his questioning of Pickett asfollows:

"Q. Mr. Pickett, I'm going to make sure that you can befair to me; and the reason I'm asking this question is BrendaJones is black. You are going to hear testimony from threeother black witnesses; and the question I have got is: Do youthink that in any -- that the fact that you are going to seeblack witnesses in here is going to handicap me and prevent mefrom getting a fair trial because of you, because you arefocusing in on just that fact?

A. You will get a fair trial.

Q. I will get a fair trial?

A. Yeah.

Q. Okay."

Rockford then exercised a peremptory challenge to dismiss Pickett. Jones objected, and Rockford was required to present a race-neutralexplanation for the dismissal. Rockford responded as follows:

"MR. McWILLIAMS: Just for a little background, Judge. Wetried a case a couple of weeks ago, and there was a blackjuror on there that I did not strike. I do not routinelystrike black jurors. I have never been accused of that in 25years of practicing.

Now, Mr. Pickett, once I started inquiry, suddenly Isensed through body language -- if you noticed, when I startedasking some questions, he suddenly crossed both arms in frontof his chest (indicating); and I construed that as an act ofdefiance and challenge.

When I asked him whether or not he could be fair, heflippantly -- he said something to the effect, 'Yes, I can bereally fair.' I sensed that he was being sarcastic aboutthat; and, frankly, I don't need that type of juror in thiskind of situation where I am, in fact, sensing some antagonismbetween he and I that I'm afraid that may be carriedthroughout the rest of the case.

I might add that his particular position, I think he's amaintenance man at RHA. He's a repairman, maintenance man. Chester Bailey was an older foundry worker. Frankly, I amconcerned that there would be some type of identification withChester Bailey's situation with Mr. Pickett. I do notroutinely and have never routinely exercised preempts againstblacks, period."

The United States Supreme Court has held that purposefulracial discrimination in the selection of jurors isunconstitutional. See Batson v. Kentucky, 476 U.S. 79, 87, 90 L.Ed. 2d 69, 81, 106 S. Ct. 1712, 1718 (1986). This is true in bothcriminal and civil cases. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630, 114 L. Ed. 2d 660, 680, 111 S. Ct. 2077, 2088(1991). There exists a three-step process for evaluating claims ofracial discrimination in jury selection. First, the complainingparty must make a prima facie showing that the opposing party hasexercised peremptory challenges on the basis of race; second, ifthe initial burden has been met, the burden shifts to theopposition to articulate a race-neutral explanation for excludingthe venire member in question; third, the trial court mustdetermine whether purposeful discrimination has been proved. People v. Randall, 283 Ill. App. 3d 1019, 1025 (1996).

The explanation for excusing a juror need not rise to thelevel of a challenge for cause; however, a mere assertion ofnondiscriminatory motive or of good faith will not rebut a primafacie case. People v. Andrews, 155 Ill. 2d 286, 293 (1993). Theexplanation must demonstrate that the excluded venire memberexhibited a "specific bias" related to the particular cause ontrial, other than that his or her shared race with a party may biashim or her in favor of that party. Andrews, 155 Ill. 2d at 293. The trial court's finding of whether purposeful discrimination hasbeen proved is a finding of fact and will not be overturned onreview unless it is found to be clearly erroneous. Andrews, 155Ill. 2d at 293-94.

Here, the record begins with the trial court shifting theburden to Rockford to provide a race-neutral explanation for itsexclusion of Mr. Pickett. Rockford's bases for excluding Pickettcan be summarized as follows: (1) Pickett's body language wasconstrued as defiant and challenging; (2) he was sarcastic abouthis ability to be fair; and (3) his occupation as a maintenance manmight make him identify with the decedent, who had been a foundryworker.

After hearing arguments, the trial court ruled as follows:

"THE COURT: All right. Thank you for your argument. Thank you for the motion. It's an interesting argument. I'maware of Batson and its progeny. I have studied it, and wehave reviewed it at some judicial conferences.

In this particular case I find that the defense has setforth a race neutral explanation for his challenge as to thejuror in this case. I do not wish to comment myself as towhether or not I sensed any hostility between Mr. McWilliamsand this juror. I think that is a very subjectivedetermination to be made by counsel upon examination of thewitnesses.

However, I do believe Mr. McWilliams is a very fineattorney; and he has examined many, many jurors over theyears. I believe that the explanation that he has given forhis reason for striking this particular juror is a legitimaterace neutral explanation, which I will accept under Batson.

After hearing all of the arguments of counsel in thiscase, I am going to overrule the Batson objection. I am goingto find that the plaintiff in this case has not establishedpurposeful discrimination on the part of Mr. McWilliams in thestriking of alternate juror Norman Pickett."

The following day, the court further explained its ruling:

"I didn't really state anything on the record withrespect to my own evaluation of Mr. Pickett's demeanor. Rather, I stated that I felt the attorneys were in the bestposition to evaluate that. But since the cases hold that theCourt should state on the record its own evaluation, I justwant to state a couple of observations that I had about Mr.Pickett.

First, I did not really notice anything unusual about Mr.Pickett's demeanor during his evaluation by the plaintiff. But during the examination by Mr. McWilliams near the end ofhis evaluation, I did notice a couple of things about hisdemeanor. He did, in fact, cross his arms during theexamination by Mr. McWilliams. I felt a couple of his answerswere rather short with Mr. McWilliams.

Then one that stands in my mind was I think maybe thelast question that was asked. Mr. McWilliams asked whether hefelt he could get a fair trial, and Mr. Pickett's answer --and the record will reflect -- was 'Yes, you will get a fairtrial.' But his manner in answering that question raised someconcerns in my mind just while viewing him whether he wasbeing straight forward [sic] with Mr. McWilliams in answeringthat question. All of those did raise a concern in theCourt's mind concerning his demeanor as a juror, which wouldsupport, I believe, the preemptory challenge.

I do want to state in fairness to Mr. Pickett, that I didnot really notice the demeanor issues until after the raceissue was raised by Mr. McWilliams in terms of stating 'Youare black. Miss Jones is black' and getting into that line ofquestioning. It wasn't until after that line of questioningwas raised that I noticed demeanor issues. There was anobjection to that, and I overruled the objection. I foundthat that was fair inquiry.

Whether or not Mr. Pickett was offended by thatparticular line of questioning, I do not know; but in fairnessto Mr. Pickett and to the plaintiffs, I just wanted to pointout that at least that's a possibility. Under the case law myobservations of Mr. Pickett in answering the last fewquestions did raise, I believe, some questions in the Court'smind which would support demeanor as a race neutral reason forexclusion under Batson. I just wanted to make that clear forthe record."

We conclude that the trial court's finding that purposefuldiscrimination had not been proved was not clearly erroneous. Taking Rockford's explanations in reverse order, we first look atthe explanation that Pickett and the decedent had similaroccupations. However, a maintenance man and a foundry worker arenot similar, certainly not similar enough to be a legitimate, race-neutral reason for excluding Pickett. Therefore, we must look toRockford's other explanations--Pickett's demeanor as expressed inhis body language and answers given during voir dire. One of thepurposes of voir dire is to observe the demeanor of prospectivejurors. People v. Mitchell, 152 Ill. 2d 274, 296 (1992). ThisState has consistently held that preemptory challenges may beexercised on the basis of an individual's courtroom conduct ordemeanor. See People v. Munson, 171 Ill. 2d 158, 178 (1996). Here, Rockford explained that, by crossing his arms, Pickettpresented a defiant and challenging air to Rockford and thatPickett's response to Rockford's question about fairness wassarcastic. The trial court noticed that Pickett's demeanor didchange when he was questioned by Rockford--he did in fact cross hisarms, some of his answers to Rockford's questions were "rathershort," and Pickett's manner in answering the question about a fairtrial raised concerns that Pickett was not being straightforward inanswering the question. The concerns raised by Rockford and thetrial court are based on subjective readings of Pickett's movementsand oral responses, things that simply do not translate to thesterile typed pages of the record that we must review. While wemay read the words of Pickett's response, "You will get a fairtrial," we have no independent way to evaluate the tone of theanswer. The trial court is in a superior position to observe thedemeanor of prospective jurors and evaluate explanations given forperemptory challenges. Mitchell, 152 Ill. 2d at 296. We cannotsay that a party must disregard what it feels is hostility directedtoward it or insincerity in answers given to its questions andaccept jurors simply because this court cannot observe or sensethese things. The trial court sensed hostility and had questionsregarding Pickett's sincerity. We cannot conclude that the courtwas clearly erroneous in finding these things and deciding thatpurposeful discrimination was not proved. Therefore, we find noerror here.

For these reasons, the judgment of the circuit court ofWinnebago County is affirmed.

Affirmed.

BOWMAN, P.J., and HUTCHINSON, J., concur.