{ "id": 5705676, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL RIVERA, Appellant", "name_abbreviation": "People v. Rivera", "decision_date": "2007-11-29", "docket_number": "No. 98609", "first_page": "1", "last_page": "30", "citations": [ { "type": "official", "cite": "227 Ill. 2d 1" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "221 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704419 ], "year": 2006, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0157-01" ] }, { "cite": "189 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224785 ], "year": 1999, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0048-01" ] }, { "cite": "93 L. Ed. 1337", "category": "reporters:federal", "reporter": "L. 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"opinion_index": 0, "case_paths": [ "/ill-2d/212/0372-01" ] }, { "cite": "211 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451664 ], "year": 2004, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0502-01" ] }, { "cite": "152 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602841 ], "year": 1992, "pin_cites": [ { "page": "288", "parenthetical": "\"[t]he trial court's [Batson] determination is a matter of fact, involving an evaluation of credibility\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0274-01" ] }, { "cite": "155 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4809650 ], "year": 1993, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0507-01" ] }, { "cite": "221 Ill. 2d 481", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703697 ], "weight": 19, "year": 2006, "pin_cites": [ { "page": "515" }, { "page": "515" }, { "page": "515" }, { "page": "511", "parenthetical": "\"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' \"" }, { "page": "511" }, { "page": "510" }, { "page": "510" }, { "page": "502" }, { "page": "515-16" }, { "page": "510, 514" }, { "page": "501" }, { "page": "501" }, { "page": "512" }, { "page": "512" }, { "page": "513" }, { "page": "513" }, { "page": "512" }, { "page": "512" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0481-01" ] }, { "cite": "348 Ill. 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MICHAEL RIVERA, Appellant." ], "opinions": [ { "text": "JUSTICE KARMEIER\ndelivered the judgment of the court, with opinion.\nChief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.\nOPINION\nDefendant, 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\u2019 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\u2019s conviction and sentence. 348 Ill. App. 3d 168. We granted the plaintiffs petition for leave to appeal. 210 Ill. 2d R. 315.\nWhen 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\u2019s sua sponte Batson challenge to defense counsel\u2019s 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\u2019s improper denial of defense counsel\u2019s peremptory strike of juror Gomez was reversible error; (6) the trial court\u2019s \u201cviolation of state statutory and constitutional guarantees to jury trial\u201d 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.\nUpon our initial consideration of this matter, we held that a trial court has the authority to raise a Batson issue sua sponte, but \u201cit may do so only when a prima facie case of discrimination is abundantly clear.\u201d People v. Rivera, 221 Ill. 2d 481, 515 (2006). We stated, when a court acts sua sponte, \u201cthe trial court must make an adequate record consisting of all relevant facts, factual findings, and articulated bases\u201d 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, \u201cif indeed that *** was the basis for the trial court\u2019s sua sponte action\u201d (Rivera, 221 Ill. 2d at 515), as the State then argued (see Rivera, 221 Ill. 2d at 511 (\u201cthe State asserts that \u2018the trial court\u2019s remarks make it clear that the court\u2019s sua sponte reverseBatson challenge was grounded solely on *** race\u2019 \u201d)). 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 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 race-gender. Because of our interim disposition, we did not address defendant\u2019s other issues.\nThe 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.\nPertinent 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.\nDuring jury selection, defense counsel questioned juror Deloris Gomez, a business office supervisor at Cook County Hospital\u2019s 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, \u201cchecking them in.\u201d 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:\n\u201cMR. DECKER [defense attorney]: Your Honor, with thanks, we would ask to excuse Mrs. Gomez.\nTHE COURT: I\u2019m going to ask you to remain, Mrs. Gomez. I\u2019m 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.\u201d\nIn chambers, the court directed defense counsel to \u201ckindly articulate a basis of why you are excusing Ms. Gomez.\u201d Defense counsel protested, \u201cThe court has done it on its own motion sua sponte.\u201d The trial court responded: \u201cI will do it. It is the citizen\u2019s right to sit as a juror, and I will implicate myself sua sponte if I feel somebody\u2019s rights are being impinged upon ***.\u201d Defense counsel then complied with the court\u2019s directive, responding:\n\u201cMrs. 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\u2019s in the orthopedic section, I think on a daily basis even though she\u2019s a supervisor, even though she\u2019s 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\u2019m pulled in two different ways. For those reasons I asked that the \u2014 .\u201d\nAt that point in defense counsel\u2019s explanation, the trial court interrupted counsel, noting that \u201cMrs. Deloris Gomez appears to be an African-American.\u201d The court then asked to \u201chear from\u201d the State on the issue, the prosecutor having been totally silent and uninvolved to that juncture. After some initial observations regarding the theory of the case and the issue for the jury\u2019s consideration, the prosecutor, apparently sensing the court\u2019s sentiment, stated that the offered reason for excusing Gomez was insufficient. Defense counsel then noted that he had previously accepted an African-American woman to sit on the jury, and the court quickly pointed out that Gomez was the second \u201cAfrican-American female\u201d that the defense had sought to exclude. The court stated it was the articulated reason given for the peremptory challenge of Gomez that was of particular concern. The court concluded:\n\u201cI\u2019ve heard her answers to the questions. I\u2019ve looked at her jury information form, and I\u2019m quite frankly very much concerned, Counsel, as to why Mrs. Deloris is being excused \u2014 Mrs. Deloris Gomez is being excused. She works in a clinical division of this hospital. It may have a reputation of having many emergency cases, I presume, involving gunshot cases, but again she works in a business office, the very first line identifying her job.\ni\u00a1:\nI did this sua, sponte because I was concerned about the right of Mrs. Gomez to be a juror and participate. If the State in fact had done this, I certainly would have found they would have established a prima facie case by the very reason \u2014 what I\u2019m going to do is allow Ms. Gomez \u2014 allow her to be seated, not excuse her on the basis of your peremptory.\nI feel under these circumstances the reasons given by you, Mr. Decker, do not satisfy this Court. As far as I\u2019m concerned, it\u2019s more than a prima facie case of discrimination against Mrs. Gomez. I\u2019m not going to allow her to be excused. She will be seated as a juror over objection.\u201d\nDefense counsel then asked for, and was granted, leave to conduct further questioning of Gomez, and noted defendant\u2019s objection of record. After completing that questioning, counsel reiterated his previous bases for excusing Gomez. In apparent response to his perception of the court\u2019s concerns, counsel stated he was \u201cnot trying to excuse a juror because of her race.\u201d He then noted that the jury was comprised predominantly of women, and he offered that he was \u201ctrying to get some impact from *** men in the case.\u201d The circuit judge responded that he would \u201coverride\u201d counsel\u2019s peremptory challenge and would seat Gomez as a juror as there was no basis for excusing her for cause.\nPursuant to our remand, a hearing was held on November 15, 2006. At that hearing, the trial judge, who had since retired, addressed the bases for his Batson rulings.\nWhether intentionally or unintentionally, the judge\u2019s opening remarks make clear that he found race a significant factor in explaining his actions. He commenced with the observation that the murder victim \u201cwas an African-American male\u201d and his mother \u201cwas also African-American.\u201d The judge pointed out: \u201cThe Defendant is Hispanic.\u201d The judge then proceeded to comment on the gender of jurors, but still noted racial characteristics:\n\u201cThe jury was composed of a majority of women; I believe after a review of the transcripts, nine women and three men. One African-American female was accepted as a juror. Another whose race was in fact unknown was excused as well. Couldn\u2019t tell by her name what race she belonged to. No one had any personal recollection. One female was excused. She had been African-American as well. Defendant sought to excuse another female African-American, a Mrs. Gomez, peremptorily. She was the third female juror challenged by the Defendant.\u201d\nThe judge noted that defense counsel\u2019s voir dire examination of Gomez \u201cessentially went to the nature of her employment and the exposure she may have had to pictures of victims of violence.\u201d When counsel indicated he wanted to exercise a peremptory challenge against Gomez, the judge asked the parties to join him in chambers, where, according to the judge\u2019s assertions in the November 2006 hearing, he indicated he was \u201craising a Batson issue because Mrs. Gomez was in fact the second [sic] woman peremptorily challenged by the Defendant.\u201d We feel compelled to note, in passing, our foregoing, comprehensive recitation of events at the original trial, and our previous finding, which necessitated remand in the first place: \u201cBecause the trial court did not state the basis for its finding of prima facie discrimination, we do not know whether the trial court believed the peremptory challenge defendant sought to exercise against Gomez represented an instance of racial discrimination, or gender discrimination, or combined race-gender discrimination.\u201d (Emphasis added.) Rivera, 221 Ill. 2d at 511. Contrary to the judge\u2019s assertions otherwise, he never stated a basis for his finding. Moreover, to further clarify, we note, though the judge mentioned, in his remarks at the November 2006 hearing, defense counsel\u2019s subsequent comments as a basis for finding a prima facie case of discrimination, those comments were made in response to the court\u2019s direction to \u201ckindly articulate a basis of why you are excusing Ms. Gomez.\u201d Again, as we pointed out in our prior disposition, under these circumstances, \u201c[t]he existence of a prima facie case is a prerequisite for the court to demand an explanation.\u201d Rivera, 221 Ill. 2d at 510. \u201c[T]he articulated reason for a challenge is a matter of \u2018concern\u2019 only after a prima facie case has been established.\u201d (Emphasis in original.) Rivera, 221 Ill. 2d at 510. Thus, where as here, the trial judge required defense counsel to explain the basis for exercising his peremptory challenge, the judge cannot use counsel\u2019s response to his command as a basis for finding a prima facie case in the first instance; yet that is what the judge appeared to do at the November 2006 hearing.\nThus, excluding remarks counsel made in response to, or as a result of, the judge\u2019s demand for a neutral explanation for the challenge, the bases articulated by the judge for finding a prima facie case of gender discrimination against Gomez consist of the number of challenges exercised against women, and the \u201cnature of the questions\u201d counsel initially asked Gomez during voir dire. Although the judge subsequently mentioned that his observation of the parties played a part in the second and third steps of his Batson analysis, he made no such comment with respect to his initial finding of a prima facie case. He did not mention demeanor as a factor in that regard; nor did he specify what aspect of defense counsel\u2019s questioning troubled him.\nAt the outset of our analysis on this issue, we note the parties now argue that differing standards of review apply to the question of whether a prima facie case of discrimination was in evidence when the trial judge acted sua sponte. As defendant acknowledges, in our prior opinion, we stated that a manifest weight standard applied, relying upon People v. Coleman, 155 Ill. 2d 507, 514 (1993). See Rivera, 221 Ill. 2d at 502. However, defendant urges us to adopt a de novo standard with respect to questions of law inherent in the resolution of this issue. The State contends that manifest weight is the correct standard, quoting from this court\u2019s opinion in People v. Mitchell, 152 Ill. 2d 274, 288 (1992) (\u201c[t]he trial court\u2019s [Batson] determination is a matter of fact, involving an evaluation of credibility\u201d). We observe that the quote from Mitchell appears to apply to the ultimate Bat-son determination, rather than the prima facie determination specifically. That, however, is not the case with our prior reliance upon Coleman.\nIn any event, we reexamine this question in light of our prior disposition in this matter. When this case was previously before us, we remanded this cause to allow the trial judge an opportunity to \u201carticulate proper findings of fact and conclusions of law with respect to the threshold question of a prima facie case of discrimination.\u201d Rivera, 221 Ill. 2d at 515-16. Such findings and conclusions are now essential prerequisites to proper review of sua sponte action on the part of the trial court, and a court that acts without making an appropriate record does so at its own peril. Given those requirements, we believe the appropriate standard of review should comport with that structure.\nWe generally apply a bifurcated standard of review in situations where a ruling presents a mixed question of law and fact. A trial court\u2019s ruling on a motion to suppress is a case in point. A trial court\u2019s findings of fact are not disturbed unless they are against the manifest weight of the evidence, but the ultimate legal determination as to whether a motion to suppress should have been granted, based on those findings, is a question of law to be reviewed de novo. See People v. Pitman, 211 Ill. 2d 502, 512 (2004). Similarly, in administrative review, an agency\u2019s findings of fact are not reversed unless they are against the manifest weight of the evidence, and questions of law are reviewed de novo. Girot v. Keith, 212 Ill. 2d 372, 379 (2004). In light of the requirements we have imposed upon trial courts acting sua sponte in this context, we believe the bifurcated standard of review is appropriately applied here as well. Thus, when a trial court raises a Batson issue sua sponte, the court\u2019s findings of fact, including any specific observations of record bearing upon demeanor or credibility, will be accorded the deference the manifest weight standard provides; however, the ultimate legal determination based upon those findings is a legal determination we will make de novo.\nWe turn to the facts and conclusions presented by the original record, and the supplemental record compiled on remand, as they bear upon the existence or nonexistence of a prima facie case of gender discrimination, which is what the trial judge now claims prompted his action. In that regard, we see only two factors cited by the judge in support of his ruling. On remand, the judge stated he believed a prima facie case of gender discrimination was indicated because of the number of women peremptorily challenged by defendant (three) and the \u201cnature of the questions\u201d counsel initially asked Gomez during voir dire. Although the judge also referred to counsel\u2019s conduct and statements after the court demanded an explanation of counsel, as we have held, under the circumstances of this case, comments or conduct thereafter cannot serve as justification for the court\u2019s intervention in the first instance. See Rivera, 221 Ill. 2d at 510, 514.\nTaking the relevant factors for evaluating a prima facie case of alleged racial discrimination (People v. Williams, 173 Ill. 2d 48, 71 (1996)), and modifying accordingly for alleged gender discrimination (see Rivera, 221 Ill. 2d at 501), we consider the following as pertinent in this context:\n(1) gender identity between the party exercising the peremptory challenge and the excluded venirepersons; (2) a pattern of strikes against female venirepersons; (3) a disproportionate use of peremptory challenges against female venirepersons; (4) the level of female representation in the venire as compared to the jury; (5) the questions and statements of the challenging party during voir dire examination and while exercising peremptory chai-lenges; (6) whether the excluded female venirepersons were a heterogeneous group sharing gender as their only common characteristic; and (7) the gender of the defendant, victim and witnesses. See Rivera, 221 Ill. 2d at 501.\nOn remand, the trial judge stated that he believed a prima facie case of gender discrimination was indicated because of the number of women peremptorily challenged by defendant (three) and the \u201cnature of the questions\u201d counsel initially asked Gomez during voir dire. The judge\u2019s assertions seem to implicate factors two through six set forth above. Therefore, we will focus on facts bearing upon those factors in our analysis.\nThe record in this case indicates that 7 men and 14 women were examined for jury service prior to consideration of juror Gomez. Out of that group, five men and four women were excused for cause. Defendant used peremptory challenges to excuse one man and two women. The State exercised a peremptory challenge against one woman. Of the initial group of 21 venireper-sons, one male was accepted for jury service, and seven women were selected by the parties. As the trial judge emphatically noted, the challenge defendant exercised against juror Gomez was the second challenge against an African-American female, and the third against a female generally. Counsel had previously objected, unsuccessfully, to the excusal of an Hispanic female for cause.\nAs we indicated in our prior opinion, the mere number of persons in a protected class who are peremptorily challenged, without more, will not establish a prima facie case of discrimination. Rivera, 221 Ill. 2d at 512, citing People v. Heard, 187 Ill. 2d 36, 56 (1999). The number of persons struck takes on meaning only when coupled with other information, such as the characteristics of the venire overall, the characteristics of others struck, and the answers of those who were not struck. Rivera, 221 Ill. 2d at 512, citing United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044 (11th Cir. 2005). The unchallenged presence of jurors from the protected class on the seated jury is a factor properly considered (Rivera, 221 Ill. 2d at 513, citing People v. Brown, 172 Ill. 2d 1, 35 (1996)) and tends to weaken the basis for a prima facie case of discrimination (Rivera, 221 Ill. 2d at 513, citing Ochoa-Vasquez, 428 F.3d at 1044-45). The party asserting a Batson claim has the burden of establishing a prima facie case and preserving the record. Rivera, 221 Ill. 2d at 512. As we held in our prior opinion, that burden falls upon a trial court when it acts sua sponte. Rivera, 221 Ill. 2d at 512.\nThe record in this case simply does not support the action taken by the trial court. Since women outnumbered men on the venire two to one, it would not be unusual, from a statistical standpoint, that defendant had used peremptory challenges against two women and one man prior to consideration of juror Gomez. Moreover, although defendant did not question Rosalee Huizenga\u2014 the second woman challenged \u2014 he did question Elizabeth Alexander \u2014 the first woman challenged \u2014 and he might well have decided to excuse her because her cousin was a police officer and she was about to get a degree in criminal justice. As far as juror Gomez is concerned, the fact that she had frequent contact with gunshot victims seems to us a valid reason why defense counsel might want to excuse her, and defense counsel\u2019s questioning reveals nothing of a discriminatory nature. If the trial judge saw something in counsel\u2019s demeanor or actions that led him to believe otherwise, he has not seen fit to make those observations a part of the record. The judge\u2019s reference to the \u201cnature of the questions\u201d counsel asked suggests that it was the content of the questions that concerned him. However, the questions asked of Gomez are a matter of record, and we see nothing in that questioning which would support a prima facie case of gender discrimination \u2014 or, for that matter, a case of racial discrimination.\nThe trial judge\u2019s statements during jury selection, frankly, suggested that he believed defense counsel was engaged in either racial discrimination or combined race-gender discrimination. Otherwise, why would the judge repeatedly emphasize that Gomez was African-American? If gender were the only consideration, there would be no reason to mention the juror\u2019s race. It simply is not relevant. It is interesting to note that the judge still felt obliged to mention the race of the parties and persons in the venire on remand, when he was making a record to support a case for gender discrimination.\nIn any event, we find that the record fails to support a prima facie case of discrimination of any kind. Consequently, the defendant was improperly denied a peremptory challenge. The question, then, is whether reversal is required.\nThe parties cite legions of cases from other jurisdictions in support of their respective positions, the State arguing that the denial of the peremptory challenge is subject to harmless-error analysis, and the defendant arguing automatic reversal. We believe this issue can be resolved on the basis of precedents from this court and the United States Supreme Court, and our analysis will proceed accordingly.\nAs we noted in our prior opinion in this matter, the peremptory challenge has been described by the United States Supreme Court as \u201c \u2018 \u201cone of the most important of the rights secured to the accused\u201d \u2019 \u201d insofar as it eliminates \u201c \u2018extremes of partiality on both sides.\u2019 \u201d Rivera, 221 Ill. 2d at 496, quoting Swain v. Alabama, 380 U.S. 202, 219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835 (1965), quoting Pointer v. United States, 151 U.S. 396, 408, 38 L. Ed. 208, 214, 14 S. Ct. 410, 414 (1894). In Justice Scalia\u2019s majority opinion in Holland v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803 (1990), he discussed the \u201cvenerable\u201d history of the peremptory challenge, stating:\n\u201c[T]hat device occupies \u2018an important position in our trial procedures,\u2019 Batson, 476 U.S., at 98, and has indeed been considered \u2018a necessary part of trial by jury,\u2019 Swain v. Alabama, 380 U.S., at 219. Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of \u2018eliminat[ing] extremes of partiality on both sides,\u2019 ibid,., thereby \u2018assuring the selection of a qualified and unbiased jury,\u2019 Batson, supra, at 91 (emphasis added).\u201d Holland, 493 U.S. at 484, 107 L. Ed. 2d at 918-19, 110 S. Ct. at 809.\nIn his dissent in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), Justice Scalia described the peremptory challenge as \u201ca means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible.\u201d Powers, 499 U.S. at 425, 113 L. Ed. 2d at 434-35, 111 S. Ct. at 1378 (Scalia, J., dissenting, joined by Rehnquist, C.J.). In its 1965 decision in Swain, the Supreme Court stated, in dictum, that the denial or impairment of the right to a peremptory challenge is \u201creversible error without a showing of prejudice.\u201d Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at 835.\nAlthough various members of the Supreme Court continue to acknowledge the importance of peremptory challenges, after Batson, the status of the peremptory challenge underwent a gradual, but marked change, culminating in the Court\u2019s decision in United States v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774 (2000), and it is now clear that the Supreme Court no longer considers peremptory challenges indispensable to a fair trial or their erroneous denial a matter necessarily requiring reversal.\nWe note, initially, that the passage from Batson, which Justice Scalia quoted in part in Holland, actually states that peremptory challenges are \u201cone means of assuring the selection of a qualified and unbiased jury.\u201d (Emphasis added.) Batson, 476 U.S at 91, 90 L. Ed. 2d at 84, 106 S. Ct. at 1720. The qualification \u201cone\u201d suggests that the Court does not consider peremptory challenges the only means of assuring the selection of an impartial tribunal, nor, perhaps, a necessary means. The Batson Court reiterated that \u201cthe Constitution does not confer a right to peremptory challenges.\u201d Batson, 476 U.S. at 91, 90 L. Ed. 2d at 84, 106 S. Ct. at 1720. In fact, the Court has long recognized that there is nothing in the Constitution of the United States which requires the granting of peremptory challenges in criminal cases. Stilson v. United States, 250 U.S. 583, 586, 63 L. Ed. 1154, 1156, 40 S. Ct. 28, 30 (1919).\nIn 2000, the Supreme Court rendered its decision in United States v. Martinez-Salazar, 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774 (2000), the case that appears to have signaled the end of Swain\u2019s automatic-reversal rule. In Martinez-Salazar, the Court first differentiated between the right to an impartial jury and the right to exercise peremptory challenges:\n\u201c[W]e have long recognized *** that such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.\u201d Martinez-Salazar, 528 U.S. at 311, 145 L. Ed. 2d at 800, 120 S. Ct. at 779.\nNoting its previous holding in Ross v. Oklahoma, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988), a case in which a defendant was forced to exercise a peremptory challenge to cure a trial court\u2019s error in denying a challenge for cause, the Court stated, \u201cwithout more, \u2018the loss of a peremptory challenge [does not] constitute[ ] a violation of the constitutional right to an impartial jury.\u2019 \u201d Martinez-Salazar, 528 U.S. at 313, 145 L. Ed. 2d at 801, 120 S. Ct. at 780, quoting Ross, 487 U.S. at 88, 101 L. Ed. 2d at 90, 108 S. Ct. at 2278. In Martinez-Salazar, the Court went on to hold, specifically, that a defendant\u2019s exercise of peremptory challenges is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar, 528 U.S. at 317, 145 L. Ed. 2d at 804, 120 S. Ct. at 782. However, the most significant part of the Supreme Court\u2019s opinion for present purposes is set forth in a footnote. As the briefs in this case indicate, that footnote has caused courts across the country to reexamine the automatic-reversal rule of Swain. That footnote states as follows:\n\u201cRelying on language in Swain v. Alabama, 380 U.S. 202 (1965), as did the Court of Appeals in the decision below, Martinez-Salazar urges the Court to adopt a remedy of automatic reversal whenever a defendant\u2019s right to a certain number of peremptory challenges is substantially impaired. Brief for Respondent 29 (a \u2018 \u201cdenial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice\u201d \u2019) (quoting Swain, 380 U.S., at 219). Because we find no impairment, we do not decide in this case what the appropriate remedy for a substantial impairment would be. We note, however, that the oft-quoted language in Swain was not only unnecessary to the decision in that case \u2014 because Swain did not address any claim that a defendant had been denied a peremptory challenge \u2014 but was founded on a series of our early cases decided long before the adoption of harmless-error review.\u201d Martinez-Salazar, 528 U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4.\nThus, in Martinez-Salazar, the Court clearly took issue with Swain\u2019s suggestion that the erroneous denial or impairment of the right to exercise a peremptory challenge requires automatic reversal, characterizing that assertion as dictum, and signaling that legal proposition is no longer good law in the age of \u201charmless-error review.\u201d\nWe observe that the footnote purports to address only \u201ca remedy of automatic reversal whenever *** a certain number' of peremptory challenges is substantially impaired.\u201d (Emphasis added.) Martinez-Salazar, 528 U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4. Obviously, in our situation, the question at hand concerns the appropriate remedy when a defendant seeks to exercise a peremptory challenge against a specific juror, and the challenge is disallowed. However, the distinction appears to be one without a difference insofar as the \u201coft-quoted language in Swain,\u201d to which the Court referred, broadly encompasses any \u201c \u201cdenial or impairment of the right [to exercise peremptory challenges].\u201d \u2019 \u201d Martinez-Salazar, 528 U.S. at 317 n.4, 145 L. Ed. 2d at 804 n.4, 120 S. Ct. at 782 n.4, quoting Swain, 380 U.S. at 219, 13 L. Ed. 2d at 772, 85 S. Ct. at 835. Moreover, the denial of \u201ca certain number\u201d of peremptory challenges is not significantly different from the denial of a peremptory challenge against a specific juror. In the former instance, a party is denied the opportunity to excuse a juror whom he suspects harbors some bias, though he cannot prove it; the same is true in the latter instance. Thus, we believe the observation in the footnote applies to the circumstances presently before this court.\nDefendant argues that we should not find that the Martinez-Salazar footnote \u201cimpliedly overruled the automatic reversal rule.\u201d We see nothing \u201cimplied\u201d in the language the Supreme Court employed. The Court undermined the validity of Swain\u2019s automatic-reversal rule on two fronts: it was dictum and the rule was espoused before the advent of harmless-error review. We believe the meaning of the Martinez-Salazar footnote is explicit.\nOf course, harmless-error review would not apply to an error considered \u201cstructural\u201d in nature. However, the error in question would not seem to qualify as a \u201cstructural error.\u201d While the Supreme Court has recognized a number of \u201cstructural errors\u201d requiring automatic reversal (see Washington v. Recuenco, 548 U.S. 212, 218 n.2, 165 L. Ed. 2d 466, 474 n.2, 126 S. Ct. 2546, 2551 n.2 (2006)), including trial before a biased trial judge (Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)), the erroneous denial of a peremptory challenge has not been included in that list. In Recuenco, the Court noted: \u201cOnly in rare cases has this Court held that an error is structural, and thus requires automatic reversal. In such cases, the error \u2018necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.\u2019 \u201d Recuenco, 548 U.S. at _, 165 L. Ed. 2d at 474, 126 S. Ct. at 2551. As the Court stated in Recuenco-. \u201c \u2018 \u201c[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.\u201d \u2019 \u201d Recuenco, 548 U.S. at_, 165 L. Ed. 2d at 474, 126 S. Ct. at 2551, quoting Neder v. United States, 527 U.S. 1, 8, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827, 1833 (1999), quoting Rose v. Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460, 471, 106 S. Ct. 3101, 3106 (1986). While trial before a biased tribunal would deprive a defendant of a substantial right and constitute structural error (see Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927)), there is no evidence that defendant was tried before a biased jury, or even one biased juror. He does not suggest that Gomez was subject to excusal for cause. Thus, we do not see the error as one fitting within the Supreme Court\u2019s framework of \u201cstructural errors.\u201d Nor can a \u201csubstantial right\u201d be implicated, as the Supreme Court considers harmless-error review applicable.\nDefendant argues that harmless-error analysis cannot apply here because \u201cGomez\u2019s presence on the jury cannot be qualitatively assessed for harm.\u201d We disagree. The Supreme Court\u2019s decision in Neder, and our recent decisions in People v. Thurow, 203 Ill. 2d 352 (2003), and People v. Nitz, 219 Ill. 2d 400 (2006), illustrate the error in defendant\u2019s position.\nIn Neder, the Supreme Court held the omission of an element of the charged offense from a jury instruction falls into the category of errors amenable to harmless-error review. The Court observed:\n\u201cUnlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.\u201d (Emphasis in original.) Neder, 527 U.S. at 9, 144 L. Ed. 2d at 47, 119 S. Ct. at 1833.\nThe Court went on to enunciate the test for determining whether a constitutional error is harmless: \u201cIs it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?\u201d Neder, 527 U.S. at 18, 144 L. Ed. 2d at 53, 119 S. Ct. at 1838.\nIn People v. Thurow, 203 Ill. 2d 352 (2003), relying upon the Supreme Court\u2019s opinion in Neder, this court held that Apprendi violations are subject to harmless-error analysis. In Thurow, as in Nitz, a judge found an element necessary for sentence enhancement when a jury should have been charged with that determination. In Thurow, this court found the Apprendi violation harmless, stating:\n\u201cGiven the evidence in support of this element, it is clear beyond a reasonable doubt that a properly instructed, rational jury would have found defendant guilty of involuntary manslaughter against a household member. We therefore conclude that the failure to instruct the jury as to this element was harmless error.\u201d Thurow, 203 Ill. 2d at 369.\nIn Nitz, we were called upon to address the appellate court\u2019s deviant application of harmless-error analysis to an Apprendi violation. We noted:\n\u201cIn applying that analysis *** the appellate court determined that it should not use an objective standard when determining whether a jury would have found defendant\u2019s crime to be brutal and heinous. 353 Ill. App. 3d at 1002. Rather, it concluded that defendant \u2018was constitutionally entitled to have each element' of his guilt decided beyond a reasonable doubt by a jury of his choosing.\u2019 (Emphasis in original.) 353 Ill. App. 3d at 1003. Thus, the appellate court considered \u2018what Nitz\u2019s jury, not some hypothetical jury, would have decided had it been allowed to decide.\u2019 353 Ill. App. 3d at 1003.\u201d Nitz, 219 Ill. 2d at 407-08.\nWe rejected the appellate court\u2019s subjective jury analysis, stating, \u201cThurow establishes that an appellate court reviewing an Apprendi error must examine the evidence and determine what a rational jury would have found. *** [T]he appellate court in this case erred when it failed to examine the evidence presented at trial and instead attempted to divine the thoughts of the 12 jurors who heard that evidence.\u201d Nitz, 219 Ill. 2d at 413-14.\nContrary to defendant\u2019s argument otherwise, it may in fact be possible to qualitatively assess for harm Gomez\u2019s presence on the jury, by applying the rational juror standard to the evidence adduced against defendant. If the evidence is so overwhelming that no rational jury \u2014 or juror \u2014 would have acquitted defendant of the offense, then Gomez\u2019s presence on the jury cannot be said to have prejudiced him. Thus, we consider the evidence adduced in this case.\nThe State presented evidence that defendant shot and killed 16-year-old Marcus Lee, erroneously believing that Lee was a member of a rival gang. At trial, the State called Susan Shelton, Miguel Rodriquez, and Charles Oberlin to testify regarding the events of January 10, 1998, the night of the murder. All three witnesses were former members of defendant\u2019s gang, the Insane Deuces.\nSusan Shelton testified that she was with the defendant on the night of the murder. That evening, Shelton attended a party where defendant and several other members of the Insane Deuces were also in attendance. At some point in the evening, defendant, Shelton, Carlos Sanchez (also a gang member), and three others left the party in Sanchez\u2019s van, with Sanchez driving. While they were driving around defendant saw two persons walking down the street. Defendant identified those individuals as members of a rival gang. Defendant directed Sanchez to stop the van. Defendant then produced a gun and exited the van, but returned a few seconds later, instructing Sanchez to chase the two persons they had just seen. Shelton testified that they never saw those two individuals again that night, but defendant later noticed another individual on the street, and announced, \u201cThere go [sic] that pussy ass Stone from earlier.\u201d Shelton knew that the Insane Deuces and the Stones were rival gangs.\nDefendant pointed his gun at Sanchez and ordered him to \u201cstop the fucking van.\u201d When the van stopped, defendant exited the van, still holding the gun. Two other occupants followed. Defendant ran around the side of the van, and out of Shelton\u2019s sight. Shelton then heard gunshots. Defendant and the others returned to the van, with defendant still holding the gun. The two other individuals with defendant were yelling gang slogans until defendant told them to \u201cshut the fuck up,\u201d advising them that he still had \u201cone bullet left.\u201d Defendant was the only person Shelton saw armed with a weapon that evening. After the shooting, defendant continued to direct the van\u2019s movements. At one point, defendant ordered Sanchez to stop in an alley. Defendant unloaded the gun and handed the shell casings to Shelton. Defendant got out of the van with the gun and later returned without it. Shelton gave the shell casings to Sanchez, and he apparently disposed of them. Sanchez then took defendant and three other individuals back to the party. Shelton testified that she believed defendant to be the \u201cchief enforcer\u201d of the Insane Deuces, a gang position below the chief, or \u201cjefe,\u201d and above the foot soldiers.\nMiguel Rodriguez testified that he was a member of the Insane Deuces on January 9, 1998, and several members of the gang \u2014 including defendant \u2014 were at his home that evening. Between 8:30 and 9 p.m. that night, the group was notified that there were some \u201cStones\u201d in a park near Rodriguez\u2019s home. The group, including defendant and a person named \u201cNelson,\u201d went to the park, where they saw some individuals playing basketball. Defendant began to \u201cthrow\u201d gang signs, indicating his allegiance to the gang. When those playing basketball did not respond, the group returned to Rodriguez\u2019s home.\nBack at Rodriguez\u2019s home, defendant referred to the individuals in the park as \u201cpussies\u201d because they were afraid to fight. Later that night, Rodriguez observed defendant in possession of two chrome revolvers. Thereafter, defendant began asking other gang members if they wanted to go with him to the projects. Defendant and other members of the gang left Rodriguez\u2019s home between 12:30 and 1 a.m. When Rodriguez next saw defendant it was approximately 3 a.m. At that time, defendant announced to Rodriguez that he was a \u201cStone killer,\u201d and he indicated he had shot someone that evening. Rodriguez identified Nelson as a \u201cchief\u2019 of the gang, and defendant as the \u201cchief enforcer.\u201d He explained that the role of the chief enforcer was to enforce the chiefs decisions.\nCharles Oberlin testified that he was a member of the Insane Deuces in January of 1998, and he knew defendant as the \u201cchief enforcer\u201d of that gang. Around 3 or 4 a.m. on January 10, 1998, Oberlin saw defendant in possession of a chrome gun, and defendant indicated that he had fired the weapon. Oberlin described his own position in the gang hierarchy at the time as that of an \u201cold-G,\u201d or elder. Oberlin explained that his position was above that of \u201cfoot soldiers,\u201d but below the chief enforcers, the chief and the vice president.\nAfter the State rested, defendant proceeded by stipulation. It was stipulated that on January 15, 1998, Oberlin had testified before the grand jury that the last time he saw defendant with a gun was at a laundromat on Belmont on January 8,1998. Further, it was stipulated that Rodriguez had testified before the grand jury that he did not see an individual named Masina give defendant the handguns, but only saw defendant with the handguns. Further, it was stipulated that Rodriquez gave grand jury testimony indicating that when defendant was explaining how he shot the victim, defendant stated that the victim grabbed his chest, screamed, fell, and never got back up. Finally, it was stipulated that Susan Shelton had testified before the grand jury on January 12, 1998. Shelton testified that, when she was in the van on the evening in question, she heard a gunshot and she then put her head down and closed her eyes, whereafter she heard four more gunshots.\nThe defense rested without presenting any witnesses.\nDuring closing argument, the prosecutor argued, inter alia, that defendant was the \u201cchief enforcer\u201d of the Insane Deuces and killed Marcus Lee because he thought Lee was \u201ca Stone.\u201d The jury, comprised of 11 unobjectionable jurors and Gomez, found defendant guilty of first degree murder on this evidence.\nAt a subsequent hearing, the circuit court denied defendant\u2019s posttrial motion and proceeded to sentencing. The State argued that an extended-term sentence was warranted because the murder was committed in a brutal and heinous manner indicative of wanton cruelty (see 730 ILCS 5/5 \u2014 5\u20143.2(b)(2) (West 1998)) and because defendant was a leader in the Insane Deuces street gang and the murder was related to the gang\u2019s activities (see 730 ILCS 5/5 \u2014 5\u20143.2(b)(8) (West 1998)). Defense counsel argued that the murder was not committed in a brutal and heinous manner and, though all the witnesses referred to defendant as the \u201cchief enforcer\u201d of the gang, \u201cit was not clearly shown that defendant was a leader, motivator or supervisor\u201d of the gang. The circuit court determined that an extended-term sentence was warranted, stating:\n\u201cI further find that [defendant] was indeed a chief enforcer of the Insane Deuces gang, *** and a weapon was obtained at his direction and a search for rival gang members was then had.\u201d\nContinuing, the court concluded, \u201cIt was a senseless, brutal killing and I feel that under the circumstances this was a gang incident, gang motivated at the direction of this defendant.\u201d The circuit court apparently accepted the State\u2019s contention \u2014 now discredited \u2014 that the principles of Apprendi do not apply because the sentencing range for first degree murder is \u201ctwenty to death by lethal injection.\u201d See People v. Swift, 202 Ill. 2d 378, 392 (2002) (sentencing range for first degree murder in Illinois is 20 to 60 years\u2019 imprisonment). The circuit court sentenced defendant to an extended-term sentence of 85 years in the Illinois Department of Corrections.\nThereafter, defendant filed a motion to reconsider sentence. At the hearing on that motion, defense counsel argued that Apprendi requires a jury to find the factors enabling the imposition of an extended-term sentence. Counsel also argued that defendant was not in a leadership position within the gang, as required by the statute, because his place in the gang hierarchy places him below \u201cthe chief\u2019 and required him to carry out the chief\u2019s orders. The circuit court persisted in its prior ruling and denied the motion for reconsideration.\nWe believe any rational trier of fact would have found defendant guilty of murder on the evidence adduced at trial. Any inconsistencies in the witnesses\u2019 grand jury testimony were insignificant when compared to their compelling trial testimony, consistently implicating defendant as the perpetrator of the murder. The evidence of defendant\u2019s guilt is overwhelming, and the error in denying defendant\u2019s peremptory challenge is thus harmless beyond a reasonable doubt. Since that is the case, we need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.\nFurther, applying the analyses of Neder, Nitz and Thurow to defendant\u2019s Apprendi issue, we find the Ap-prendi violation harmless beyond a reasonable doubt. Section 5 \u2014 5\u20143.2(b)(8) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 5\u20143.2(b)(8) (West 1998)) authorized an extended-term sentence:\n\u201cWhen a defendant is convicted of a felony other than conspiracy and the court finds that the felony was committed under an agreement with 2 or more other persons to commit that offense and the defendant, with respect to the other individuals, occupied a position of organizer, supervisor, financier, or any other position of management or leadership, and the court further finds that the felony committed was related to or in furtherance of the criminal activities of an organized gang or was motivated by the defendant\u2019s leadership in an organized gang[.]\u201d 730 ILCS 5/5 \u2014 5\u20143.2(b)(8) (West 1998).\nClearly, this murder was gang related and involved the participation and agreement of defendant and two or more other persons. The uncontradicted evidence indicates that defendant held a leadership position in the gang and the murder was motivated by defendant\u2019s leadership position. The error in not submitting the enhancement issue to a jury is harmless beyond a reasonable doubt.\nFinally, defendant contends that the imposition of an extended-term sentence in this case violated his right to a jury trial as guaranteed by the Illinois constitution. He suggests that this right is broader than that guaranteed by the federal constitution and such a violation is not subject to a harmless-error analysis. Defendant\u2019s argument is interesting insofar as it begins with the relatively new federal rule of procedure announced in Apprendi \u2014 a rule which we had never recognized as required by our state constitution \u2014 and not only assumes we would find such a requirement in Illinois\u2019 constitution, but also urges us to hold that its violation is not amenable to harmless-error analysis.\nIn fact, an examination of our decisions over the decades suggests no such requirement. With the exception of death penalty cases, the long-standing procedure in Illinois has been for judges to make sentencing determinations, including the finding of facts necessary to support the sentences. Multitudes of such cases predate the 1970 Illinois constitution, and we have to assume the framers were aware of them. Thus, when the defendant cites article I, section 13, of the Illinois Constitution, wherein it is stated that \u201c[t]he right of trial by jury as heretofore enjoyed shall remain inviolate\u201d (emphasis added) (Ill. Const. 1970, art. I, \u00a713), the right of which he speaks was apparently not one which included jury participation in the sentencing phase of noncapital cases.\nThis court, in People v. Adkins, 41 Ill. 2d 297 (1968), made it clear that sentencing in noncapital cases was a procedure distinct from the adversary proceeding of a jury trial, and with different evidentiary rules and standards:\n\u201cIn Illinois, *** we have long held that the judge in determining the character and extent of punishment is not limited to considering only information which would be admissible under the adversary circumstances of a trial.\u201d Adkins, 41 Ill. 2d at 300.\nThe rules did not change with the advent of extended-term sentencing in the early 1970s. In People v. La Pointe, 88 Ill. 2d 482 (1981), a case involving extended-term sentencing, this court quoted the Supreme Court itself in differentiating between the evidentiary rules then applicable to trial procedures and sentencing procedures: \u201c \u2018In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction.\u2019 \u201d La Pointe, 88 Ill. 2d at 496, quoting Williams v. New York, 337 U.S. 241, 246-51, 93 L. Ed. 1337, 1342-44, 69 S. Ct. 1079, 1083-85 (1949). Relevance and reliability were the touchstones for admissibility (People v. Fern, 189 Ill. 2d 48, 67 (1999)), and the reasonable doubt standard that emerged from Apprendi was not a part of noncapital sentencing in this state prior to that decision; nor was the requirement that the trier of fact make findings pertinent to sentencing.\nIn La Pointe, this court considered the constitutionality of one of the very enhancement factors argued by the State in this case. In La Pointe, defendant challenged the constitutionality of section 5 \u2014 8\u20141(a)(1) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20141(a)(1)), which authorized natural life imprisonment when \u201cthe court\u201d found a defendant\u2019s conduct to be \u201cexceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d La Pointe, 88 Ill. 2d at 499. Defendant argued that the statute was unconstitutionally vague and therefore violated due process requirements; he also argued that the felony sentencing scheme, which offered the prospect of release to every offender sentenced to a term of imprisonment excepting a small class of murder defendants, violated equal protection of the law. La Pointe, 88 Ill. 2d at 499. It likely never occurred to him, or any other defendants, or the legislature, that a sentencing court could not, constitutionally, make findings bearing upon sentence enhancement. The only requirement was that the court advise the defendant, initially, of the possible sentences he could face, including extended-term sentences, upon proof of certain aggravating facts.\nIn response to Apprendi, the Illinois legislature changed section 1005 \u2014 8\u20141(a)(1) to require the \u201ctrier of fact\u201d to find an enhancement factor \u201cbeyond a reasonable doubt.\u201d See 730 ILCS 5/5 \u2014 8\u20141(a)(1) (West 2000). The legislature clearly felt no need to make those changes prior to the Supreme Court\u2019s decision in Apprendi, because it was taken for granted that the judge was the sentencing fact finder in noncapital cases prior thereto.\nWe have considered defendant\u2019s extensive argument on this issue, and we reject his contention that the Illinois constitution affords rights beyond its federal counterpart in this respect. We see no appreciable difference between the rights guaranteed by the federal and state constitutions. As we noted recently in People v. Taylor, 221 Ill. 2d 157, 169 (2006):\n\u201cBoth our federal and state constitutions preclude a criminal felony conviction without the right to a jury trial. Specifically, the sixth amendment to the United States Constitution states that \u2018[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.\u2019 U.S. Const., amend. VI. Similarly, our state constitution provides that \u2018[i]n criminal prosecutions, the accused shall have the right *** to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.\u2019 Ill. Const. 1970, art. I, \u00a78.\u201d\nAlthough the harmless-error analysis we used in Thurow was based on United States Supreme Court precedents interpreting the right to a jury trial guaranteed by the federal constitution, we find nothing in our own constitution, or our precedents, which would cause us to interpret the Illinois constitution differently. Therefore, assuming, arguendo, that the Illinois constitution requires a \u201ctrier of fact\u201d to make findings bearing upon sentence enhancement \u201cbeyond a reasonable doubt,\u201d we conclude that any violation of the right to a jury trial guaranteed by the Illinois constitution was harmless for the same reasons discussed in Thurow.\nFor the foregoing reasons, we affirm the judgment of the appellate court \u2014 though not the entirety of its analysis \u2014 insofar as that judgment affirmed the judgment of the circuit court.\nAffirmed.", "type": "majority", "author": "JUSTICE KARMEIER" } ], "attorneys": [ "James K. Leven, of Chicago, for appellant.", "Lisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (Linda D. Woloshin, Assistant Attorney General, of Chicago, and James E. Fitzgerald, Mary L. Boland, Alan J. Spellberg and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 98609.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appel-lee, v. MICHAEL RIVERA, Appellant.\nOpinion filed November 29, 2007.\nJames K. Leven, of Chicago, for appellant.\nLisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (Linda D. Woloshin, Assistant Attorney General, of Chicago, and James E. Fitzgerald, Mary L. Boland, Alan J. Spellberg and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0001-01", "first_page_order": 13, "last_page_order": 42 }