Lead Opinion
¶ 1. Nancy R. Lamon (Lamon) seeks review of a court of appeals' decision that
¶ 2. We affirm the decision of the court of appeals. We give deference to the circuit court's decision based on the standard set forth in Hernandez, and hold that clearly erroneous is the correct standard of review in this case. Hernandez v. New York,
I. BACKGROUND
¶ 3. The facts are undisputed. Leeman Jones (Jones), an African-American, was driving home around 1:00 or 1:30 a.m. on May 31, 1998, when Nancy R. Lamon (Lamon) flagged him down. She expressed the need to be taken to a telephone and got into Jones' car. Jones began driving, but stopped the car upon Lamon's statement that her friend was in a car behind them. Jones stopped the car and the person in that car approached Jones' window and asked for Jones' wallet while Lamon threatened Jones with an object on his right side. Jones complied and his money was taken from his wallet. Lamon exited Jones' car and entered her friend's car.
¶ 4. On June 3, 1998, a complaint was filed in Rock County Circuit Court charging Lamon with violating Wis. Stat. § 943.32(1)(b) & (2)
¶ 5. On June 30, 1998, Lamon entered a plea of not guilty. Lamon then entered a motion to dismiss, claiming lack of probable cause at the preliminary hearing. The circuit court denied the motion finding that there was sufficient evidence for Jones to have had a reasonable belief that he was threatened by a weapon.
¶ 6. On April 14, 1999, jury selection for Lamon's trial began. Twenty out of 35 possible jurors were called and seated in the jury box; one of which was Mr. Dondre Bell (Bell). Bell was the only African-American in the jury pool. The circuit court questioned the venire first. Bell did not respond affirmatively to any of these questions, although others did answer yes and were asked follow-up questions.
¶ 7. The court asked the potential jurors the following questions:
Is anyone related by blood or marriage to Lamon? (R. 60:7).
Is anyone otherwise acquainted with Lamon? (R. 60:7).
Is anyone related by blood or marriage, or otherwise acquainted with defense counsel or the Assistant District Attorney? (R. 60:8-9).
Does anyone have any possible financial interest, or other possible interest in the outcome of the trial? (R. 60:10).
Does anyone have some feeling of bias or prejudice for or against the State or the defendant, keeping in mind the charge of armed robbery? (R. 60:10).
Does anyone have a compelling reason why they should not be compelled to serve for possibly two days? (R. 60:10).
Does anyone believe that they could not be fair and impartial? (R. 60:10-11).
¶ 8. Assistant District Attorney Jodi Dabson Bol-lendorf (Bollendorf) then conducted a general voir dire of the venire. Bell did not respond affirmatively to any of these questions, but other potential jurors answered yes to some of the questions. Specifically, Bollendorf asked:
Is there any of you who has had contact with the Rock County District Attorney's Office in any capacity? As a victim, as a witness, as a defendant? Just to call up and ask a question or any capacity whatsoever? ... No one's had contact. (R. 60:11).
Is there any of you who has ever been a victim of a crime? (R. 60:11).
Is there anyone here who has a close friend or relative who has been the victim of a crime? (R. 60:15).
Are there other people besides those that have already raised their hands that are in that situation who have a close friend or relative who has been convicted? (R. 60:18).
¶ 9. Bollendorf then asked if anyone was acquainted with or knew of people involved in the incident.
Whether anyone had dealings with his law office under its current or past name. (R. 60:21).
Had anyone been prosecuted for a traffic crime? (R. 60:21).
Did anyone feel they could not hold the state to the high burden of beyond a reasonable doubt? (R. 60:21).
Did anyone believe that a police officer made for a more believable witness? (R. 60:22).
Did anyone believe that Lamon must have done something wrong to be in this position? (R. 60:22).
Did anyone feel they would have a hard time judging the State's case without hearing Lamon testify, and would anyone hold it against the defense if the defense argued the State did not meet its burden and then the defense did not put on its own case? (R. 60:23).
¶ 11. The attorneys then exercised their peremptory strikes. Out of the presence of the jury Livingston challenged Bollendorf s peremptory strike of Bell. Livingston made a Batson challenge, asking for a race-neutral explanation of the strike, on grounds that the defendant was African-American, and the prosecutor struck the only African-American on the panel. Livingston also pointed out that the victim appeared to be approximately the same age and the same race as the juror who was struck.
¶ 12. The circuit court noted that Bell was the only African-American juror and noted that Bollendorf did not. ask individual questions. The circuit court then asked Bollendorf for a reason for her peremptory strike.
¶ 14. In response to the prosecutor's answers, Livingston said that Bell is a fairly common name; Bell did not respond to the question about family members dealing with the district attorney's office; and Bollen-dorf did not question Bell individually as to whether he was related to the Bell family involved in criminal activity. Livingston also stated that the police contacts at Bell's address were mostly civil in nature, and that Bollendorf did not inquire individually into Bell's residence at that address. Livingston argued that Bollen-dorf could have asked Bell questions about these circumstances individually, and asked the court to individually voir dire Bell.
¶ 15. Bollendorf argued that Exhibit 1, the exhibit listing police contacts at Bell's address, clearly shows contacts with people named Bell. Bollendorf reiterated her concern that Bell was not completely forthright and honest as a prospective juror, because he did not answer the questions about whether a relative
¶ 16. The circuit court found that Bollendorf had just cause for the peremptory strike, but did not elaborate on its decision. As a result Bollendorf s peremptory strike was allowed to stand.
¶ 17. At trial, the jury found Lamon guilty of armed robbery on April 15, 1999. On May 24, 1999, Lamon pled guilty to the charge of repeat offender and was sentenced to an indeterminate prison term not to exceed 20 years.
¶ 18. Lamon filed a post-conviction motion for a new trial on the grounds that the State's reasons offered for the peremptory challenge were not sufficient justifications. The circuit court, Honorable Daniel T. Dillon presiding, denied the motion on November 20, 2000, finding, inter alia, that it was reasonable for Bollendorf to conclude Bell was being less than candid in not mentioning these police contacts in which the victim presumably resided at the Bell residence.
¶ 19. The circuit court also determined that it was not necessary for the State to question Bell in front of the other jurors in order to prove the reason for the strike.
¶ 20. Lamon appealed and on April 4, 2002, the court of appeals held that Lamon failed to prove that the State did not have a race-neutral reason to strike Bell. The court of appeals held that the circuit court's ruling was not clearly erroneous to accept the
¶ 21. Lamon petitioned this court for review. We granted review on September 26, 2002.
II. PEREMPTORY STRIKES, THE BATSON TEST AND ITS PROGENY
¶ 22. Wisconsin has adopted the Batson principles and analysis. See State v. Davidson,
¶ 23. Originating in English common law, the peremptory challenge is part of the fabric of our jury system and allows parties to strike a potential juror without a reason stated, without inquiry, and without being subject to the court's control.
¶ 25. In 1986 the U.S. Supreme Court affirmed the prosecutor's general right to exercise peremptory strikes for any reason related to the prosecutor's view of the case outcome. Batson,
¶ 26. In reaching its decision, the Batson Court held that the "invidious quality" of government action alleged to be racially discriminatory in violation of the Equal Protection Clause "must ultimately be traced to a
¶ 27. As a result, the Batson Court outlined a three-step process for determining if a prosecutor's peremptory strikes violated the Equal Protection Clause. Id. at 96-98.
¶ 28. First, in order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant's race from the venire,
¶ 29. Under the second step of Batson, if the circuit court finds that the defendant has established a prima facie case, "the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]." Id. The prosecutor's explanation must be clear, reasonably specific, and related to the case at hand. Id. at 98 n.20. However, the prosecutor's explanation need not rise to the level of justifying exercise of a strike for cause. Id. at 97-98.
¶ 30. At the second Batson step, a "neutral explanation" means an explanation based on something other than the race of the juror. Id. at 98. Facial validity of the prosecutor's explanation is the issue. Unless discriminatory intent is inherent in the prosecutor's explanation, "the reason offered will be deemed race neutral." Hernandez,
¶ 31. A prosecutor's reasons for his or her peremptory challenge need not rise to the level of a for cause challenge. According to Burkett, the explanation proffered at the second step need not be "persuasive, or even plausible." Purkett v. Elem,
This warning was meant to refute the notion that a prosecutor' could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection.
Id. at 769. Moreover, as noted previously, the Court in Purkett said that even a "silly or superstitious" reason, if facially nondiscriminatory, satisfies the second step of Batson. Id. at 768.
¶ 32. Finally, the third step of Batson requires that when the prosecutor offers a race-neutral explanation, the circuit court has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established. Batson,
¶ 33. In addition to accepting "silly", "superstitious" justifications for striking a juror, intuitive strikes have been upheld as valid strikes. United States v. Terrazas-Carrasco,
¶ 34. Applying Batson and its progeny, the rule today is that the Equal Protection Clause is not violated simply because there is a racially discriminatory or a disparate impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. As noted previously, the Court in Hernandez said: "Discriminatory purpose [] implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker [] selected [] a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Hernandez,
¶-35. Despite the protections outlined in the three-part test of Batson, Lamon contends that discrimination in jury selections "remains widespread." (Pet'r Br. at 7). We recognized 13 years ago that racial discrimination in the jury selection process harms three distinct groups. Walker,
¶ 36. This court is presented with two issues. First, we must answer whether the circuit court's application of the Batson test was incomplete, so that our review should be de novo. Batson,
¶ 37. Based on the U.S. Supreme Court's decision in Hernandez, we hold that the appropriate standard of review is clearly erroneous.
¶ 38. Second, we must determine whether it was clearly erroneous for the circuit court judge to permit the prosecution's peremptory challenge of Bell to stand. We hold that under the totality of the circumstances in this case, individual questions did not have to be asked of the stricken juror, Bell. Bollendorf proffered several race-neutral reasons for the strike, reinforced with evidence demonstrating a lack of discriminatory intent. The primary credibility determination relates to the proponent of the strike, and the circuit court judge is in the best position to make an appropriate determination. The record in this case supports the circuit court's decision to allow Bollendorfs peremptory strike to
IV STANDARD OF REVIEW
¶ 39. We must first determine the appropriate standard of review.
¶ 40. Lamon argues that, although the general rule set forth in Batson and Hernandez is to apply a clearly erroneous standard, the facts of this case warrant de novo review. Based on Holder v. Welborn,
¶ 41. As noted previously, we affirm the court of appeals' application of the clearly erroneous standard of review as established in Batson and Hernandez. Batson,
¶ 42. In reaching that decision the Batson Court held that the trial court judge is in the best position to determine the credibility of the state's race-neutral
¶ 43. The general rule in Batson remains good law, and was reiterated and emphasized in Hernandez,
Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."
Id. at 365 (citations omitted).
¶ 44. As a result of the U.S. Supreme Court's holding that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact, the Hernandez court expressly rejected the notion of independent appellate review and said:
We have difficulty understanding the nature of the review petitioner would have us conduct. Petitioner explains that"((Independent review requires the appellate court to accept the findings of historical fact and credibility of the lower court unless they are clearly erroneous. Then, based on these facts, the appellatecourt independently determines whether there has been discrimination." But if an appellate court accepts a trial court's finding that a prosecutor's race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.
Id. at 366-67 (citations omitted).
¶ 45. Wisconsin law is in accord with the U.S. Supreme Court, holding that discriminatory intent is a question of historical fact, and the clearly erroneous standard of review applies at each step of the Batson analysis. State v. Gregory,
¶ 46. However, as pointed out by Lamon, there is an exception, recognized by some courts, to the general rule of giving deference to the lower court. According to this exception, de novo review is appropriate if the trial court judge does not have an opportunity to evaluate credibility. Holder,
¶ 48. Using Holder, Lamon asserts that de novo review is required in this case because the reasons set forth for application of the clearly erroneous standard in Batson and Hernandez do not apply here. It is argued that Judge Dahlberg was unable to evaluate the credibility of Bell; therefore, the basis of the Hernandez rule does not apply.
¶ 49. As noted previously both Batson and Hernandez state that the trial court's decision enjoys great deference because that judge is in the best position to evaluate the credibility of the juror and the credibility of the prosecutor's proffered reasons for using a peremptory strike.
¶ 50. Like the magistrate in Holder, who was unable to evaluate the credibility of the juror, Lamon argues that Judge Dahlberg was not privy to an individual voir dire of Bell. As a result, this court should apply the de novo standard of review in Holder when examining prosecutorial or juror credibility.
¶ 52. We agree with the State's arguments. Although Lamon attempts to rely on Holder in support of her argument that the de novo standard is the appropriate standard of review, Holder is procedurally distinguishable and not controlling in this case. Holder,
¶ 53. Unlike the magistrate in Holder, the record in this case illustrates that the circuit court judge had sufficient opportunity to examine the credibility of the prosecutor's justifications for the strike. In this case, Judge Dahlberg had other first-hand information concerning the prospective juror along with the opportunity to observe personally Bell's response. Hernandez held that it is the province of the trial judge to weigh credibility because of the nature of that position, but did not hold that credibility could only be established through hearing personalized voir dire questions and answers. Hernandez,
¶ 54. This case involves the same type of situation that was present in Hernandez. This case involves the striking of a potential juror who is of the same race as the defendant. The circuit court judge in this case was in the best position to evaluate the level of Bollendorf s knowledge of information relating to Bell, in combination with Bell's non-responsiveness to the general voir dire. As in Hernandez, the circuit court judge in this case chose to believe the State's race-neutral explanations for the challenge. Hernandez held that such a determination was a pure issue of fact under Batson and was subject to review under a deferential standard. Hernandez,
¶ 55. It is important to note that an inflexible rule applying a clearly erroneous standard in all cases may be troublesome in certain situations. Therefore, in limited situations where the fact that a member of the venire has not been questioned individually contributes to the totality of the circumstances disproving the credibility of the explanation offered by the prosecution, de novo review may be the appropriate standard, as it was in Holder.
¶ 57. As a result, we hold that based on the U.S. Supreme Court's decision in Hernandez, the facts of this case require us to give deference to the circuit court. Thus, we will not overturn the circuit court's decision unless we find it to be clearly erroneous.
¶ 58. We hold that under the circumstances of this case the prosecutor was not required to ask individual questions of the stricken juror. The totality of the circumstances here convince us that de novo review is not required.
V ARGUMENTS ABOUT RACE-NEUTRAL JUSTIFICATIONS FOR PEREMPTORY STRIKES
¶ 59. Given the long history of racial discrimination in jury selection, Lamon asks this court to reverse the decision of the court of appeals, and remand the case for a new trial.
¶ 60. With regard to step three of the Batson test, Lamon maintains the prosecutor, without asking Bell
¶ 61. Lamon argues that the State's refusal to conduct individual voir dire of Bell raises the inference that the State knew its race-neutral reasons for the strike would not be supported by the facts. In addition, Lamon maintains that the State's evidence in Exhibit 1, a list of police contacts at Bell's address, was not sufficient to support any proffered race-neutral claims. To the contrary, Lamon claims that the list does not conclusively prove that any arrests or convictions occurred at Bell's address. One contact with someone named Bell was civil in nature and the other ended in a withdrawn complaint. Additionally, Lamon claims that the evidence does not sufficiently prove whether prospective juror Bell lived at that address at the time of any of the listed occurrences. Finally, Lamon contends that Bell is a common name and should not necessitate an assumption of crime association.
¶ 63. Lamon further contends that the State prejudged Bell when the State claimed that Bell might not have been forthright if asked follow-up questions. The failure to ask follow-up questions, according to Lamon, is demonstrative evidence of the prosecutor's discriminatory intent.
¶ 64. Next, Lamon argues that both the Gregory holding and the findings in the post-conviction motion are contradictory and should be ignored. Gregory,
¶ 65. Beyond the refusal to individually voir dire Bell, Lamon argues that the State's use of certain terms and phrases was discrimination in disguise. For example, Lamon contends that "high crime area" was code
¶ 66. Moreover, Lamon contends the State's claim that "individual questions for Bell would have singled him out" does not qualify as a race-neutral reason. Lamon notes that the prosecutor singled out white jurors for individual voir dire; therefore, asking Bell questions would not have isolated him.
¶ 67. Finally, given the above arguments, Lamon argues a new trial is warranted because the commission of a Batson error is not harmless error. Lamon cites a Second Circuit decision, Tankleff, where the court held a Batson error is a "structural error," which is not subject to harmless error review. Tankleff v. Senkowski,
¶ 68. The State disagrees and asserts that even though the law has expanded to protect against discrimination since Batson, the right to exercise peremptory challenges is still protected. Additionally, the State asserts that evidence of a potentially discriminatory or disparate impact is not sufficient to establish a Batson violation. To the contrary, discriminatory intent must be proven, and according to Purkett v. Elem, 514 U.S.
¶ 69. The State maintains that Bollendorf gave several race-neutral reasons for using her peremptory strike. Those reasons were based on information obtained before voir dire, and on Bollendorf s observations of Bell during voir dire. The reasons given by Bollendorf for her peremptory strike of Bell included: (1) that her office and the federal prosecutor have prosecuted a number of Bells who live in Beloit through the years, and it is a well-known criminal name in Beloit; (2) that Bell's address is in a high crime area in Beloit, and that the State obtained police reports evidencing police contacts at that address;
¶ 70. As stated earlier, the third step of Batson is the relevant inquiry in this case.
¶ 71. In addition, the State argues that Lamon overstates the holding in Walker with respect to the totality of the circumstances test. Possible factors that may raise an inference of discrimination could contradict each other. For example, failure to examine a juror or singling a juror out could each be argued to weigh against race neutrality, so it is important to examine the other circumstances surrounding the strike.
¶ 72. Finally, the State relies on the holding in Davidson, which held that individual follow-up questions are not required in order to strike a potential juror. Davidson,
VI. APPLICATION OF THE CLEARLY ERRONEOUS STANDARD TO THE JUSTIFICATION OFFERED
¶ 73. As noted above, this case concerns the third step of the Batson test.
¶ 74. Applying the clearly erroneous standard of Hernandez, we uphold the decision of the court of
¶ 75. In Walker, the defendant, an African-American, was charged with armed robbery. The jury selection consisted of twenty possible jurors and only one was an African-American. During the voir dire examination of potential jurors, the record in Walker showed that African-American venireperson "did not answer in a way that would suggest a disqualifying attitude to any general questions directed at the pool of jurors by the judge or by the lawyers, nor did the court or counsel ask the [African-American] venireperson any specific questions." Walker,
First, the prosecutor denied that he had a discriminatory motive. The Court in Batson declared that the mere denial of discriminatory intent is not sufficient to rebut an inference of purposeful discrimination. Batson, 476 U.S. at 98 . Second, the prosecutor explained that, going into the jury selection process for Walker's trial, he only had information about jurors with juror numbers between 841 and 906. The black venireperson had a juror number of 944. The prosecutor thus stated that he struck the black venireperson because he had no information about him. This explanation is unacceptable because it is not "clear and reasonably specific." Moreover, this explanation appears to be pretex-tual.
Id. at 178. Accordingly, this court held that the facts in Walker "raise[ed] an inference of purposeful discrimination" on behalf of the prosecutor. Id.
¶ 76. Thus, unlike the situation in Walker, Bell's lack of response to several questions, in combination with Bollendorf s information on Bell, gave support to Bollendorfs explanation for her peremptory strike of Bell. As noted previously, the U.S. Supreme Court recently addressed the matter of credibility of a prosecutor's reasons for his or her use of a peremptory strike in Miller-El v. Cockrell and said: "Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. Miller-El v. Cockrell,
¶ 77. Although it may be argued that Judge Dahl-berg did not set forth enough reasons for his decision to allow the State's strike to stand, such an argument is weakened by the holding in Miller-El, where the Court
¶ 78. Determining discriminatory intent under Batson simply requires the consideration of the "totality of the relevant facts." Hernandez,
¶ 79. Turning to the facts of this case, it is undisputed that the only African-American juror was struck from the venire, and the defendant is African-American. However, when questioned by the circuit court judge, the State offered several race-neutral reasons for exercising her peremptory challenge against Bell.
A. Name/Address
¶ 80. When questioned why she struck Bell, Bol-lendorf explained that the prosecutor's office, as well as the federal prosecuting attorney's office, had prosecuted a number of Bells who live in Beloit. According to Bollendorf, Bell is a well-known criminal name in Beloit. Next, the State noted Bell's address is in a high crime area in Beloit and that the State obtained police reports evidencing police contacts at that address. These contacts ranged from civil processes to stolen vehicles. The State argued that the Bell in the venire may be related to the people at that address and that there were a number of police contacts at Bell's address, yet Bell did not answer the State's question regarding contact with the district attorney's office or with law enforcement officers. Furthermore, he did not mention anything about relatives who may have had contacts, even though, in Exhibit 1, Bells are listed at his address.
¶ 82. In reaching its decision the Gengler court relied on a number of cases. First, the court relied on United States v. Johnson,
¶ 83. Additionally, when a potential juror has the same last name as someone previously convicted by the prosecutor, courts have accepted it as a race-neutral reason for a peremptory strike. Terrazas-Carrasco,
¶ 84. In Terrazas-Carrasco the court of appeals held that the district court was not clearly erroneous in determining that a prosecutor's use of peremptory
We "must accept the [inquiring] judge's credibility choice" with respect to the prosecutor's reasons. Valid reasons for exclusion may include "intuitive assumptions" upon confronting a venireman. In Lance, we upheld such factors as eye contact, demeanor, age, marital status, and length of residence in the community as valid grounds for peremptory challenge. In this case, the reasons articulated are of the same variety.
Id. at 94-95 (citing United States v. Lance,
¶ 85. Along with names, addresses may provide an acceptable race-neutral justification for a peremptory strike. As noted by the State in its brief, case law is quite clear that location of a venireperson's residence provides a race-neutral reason for a peremptory strike when a residential location has some relationship to the facts of the case. (Resp't Br. at 22 n.3). For example, in United States v. Briscoe, the court upheld a peremptory strike where prosecutor's explanation "went well beyond a cursory statement that Mr. Jeffries resided on the west side of Chicago." United States v. Briscoe,
¶ 86. In support of the proffered race-neutral reasons for the peremptory strike the State introduced Exhibit 1 during the Batson hearing. Exhibit 1 listed several law enforcement contacts at the address that Bell had listed in his juror questionnaire. One of those contacts involved a complaint about a stolen vehicle and parties who were named Bell. Accordingly, Exhibit 1, like the case in Briscoe, explained the nature and previous use of the residence, which went beyond a "cursory statement" that Bell simply lived in a high crime area. Id.
B. Juror Veracity
¶ 87. Furthermore, the State argued that Exhibit 1, coupled with Bell's lack of response, indicated that he may not respond forthrightly to further voir dire questions directed to him. Bell's failure to disclose during voir dire any police contacts at his residence is a plainly race-neutral justification for striking him. See Coulter v. Gilmore,
C. Not Wanting to Single Him Out
¶ 88. The defense maintains that Bollendorf could have asked Bell individual questions on voir dire. Bollendorf stated that she did not want to appear to single Bell out. While the lack of personalized voir dire of a juror may inhibit a judge's evaluation of the attorney's credibility in peremptory challenge explanations, inhibiting is different than eliminating the opportunity to determine credibility altogether.
¶ 89. Questioning or failing to question a potential juror presents a problematic tautology. Failing to examine a juror, or conversely singling out a juror, can be equally argued to weigh against a race neutral justification for a peremptory strike. In Gengler the court held that a prosecutor was allowed to rely on information other than individual voir dire to provide a basis for his race neutral explanation. Gengler,
¶ 90. The State also explained that Bell's juror card listed his employment as "varies," which goes to his responsibility as a juror. The Seventh Circuit has held that unemployment may provide a sufficiently race-neutral explanation for a strike. United States v. Lewis,
E. Totality of the Circumstances
¶ 91. It is clear from the record that the evidence in Exhibit 1, as well as clear case law, supported Bollendorfs explanations for her peremptory strike. Bollendorf relied on a detailed police report of contacts at Bell's address, along with her personal knowledge of prosecutions against other persons named Bell, and her observations of Bell and his answers during voir dire. Based on the race-neutral reasons offered by Bollendorf for her peremptory strike, we find that Lamon did not meet the burden of proof required to show that the State's reasons were not race-neutral. Accordingly, we affirm the court of appeals' decision and hold that the decision of circuit court in allowing the strike to stand
VII. CONCLUSION
¶ 92. In summary, we affirm the court of appeals' decision. The decision of the circuit court was not clearly erroneous when it determined that the State's reasons for striking the juror were race-neutral; and, therefore, allowed the peremptory strike of Bell to stand. The State listed several acceptable race-neutral reasons for its strike of Bell and provided a detailed police report of contacts at Bell's address in support of its reasons for the strike. Although the State did not individually question Bell further, Davidson instructs that such questioning is not necessary. Furthermore, under the totality of the circumstances test, any alleged discriminatory intent evidenced by the prosecutor's decision not to question Bell individually, was outweighed by the race-neutral explanations offered.
¶ 93. Based on well-settled law, we accord deference to the decision of the circuit court in this case and hold it was not clearly erroneous to accept the reasons offered by the State in justification for its peremptory strike.
By the Court. — The decision of the court of appeals is affirmed.
Notes
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
Bollendorf listed Leeman Jones, Officer Dan Daly, Officer Tom Niman, Officer Bobby Pittman, Lamon's family including Maggie Lamon and Bobbie Lamon a/k/a Bobbie Goode.
See Batson v. Kentucky, 476 U.S. 79, 103-05 (1986) (Marshall, J. concurring) for a detailed history of peremptory strikes.
" 'Discriminatory purpose'. .. implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . .. selected ... a particular course of action at least in part 'because of not merely 'in spite of,' its adverse effects upon an identifiable group." Hernandez v. New York,
A defendant of whatever race is entitled to a jury selected without discrimination. See Powers v. Ohio,
We recognize that Hernandez addresses federalism issues about review of state court and federal court decisions. While we are not presented with any federalism issues, we nevertheless cite the Hernandez case for the proposition that the appropriate standard of review is clearly erroneous.
See also United States v. Terrazas-Carrasco,
Neither the State, nor Lamon challenges the validity of steps one and two of the Batson test. (Pet'r Br. at 7 and 9).
We need not address whether the holding in. Gregory negates examining the post-conviction motion findings because the findings of that motion by a different circuit court judge are not necessary in determining the outcome of this case.
"However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike (citing Williams v. Chrans,
These contacts ranged from civil processes to stolen vehicles. The State argued that the Bell in the venire may be related to the people at that address. Moreover, there was a number of police contacts at Bell's address, yet Bell did not answer Bollendorf s question regarding contact with their office or with law enforcement officers. Despite Bell's being listed at the address in Exhibit 1, Bell failed to mention anything about relatives who may have had contacts at his address.
The State points out that Lamon does not take issue with steps one and two of the Batson test.
Contrary to the hyperbole of the dissent, we do not "ignore!] well-established case law." (Dissent, ¶ 94). Rather, we have applied the relevant case law from the U.S. Supreme Court, the court of appeals, and this court to the facts and issues presented.
The dissent would have us strip away the deference due to the circuit court's determinations (Dissent, ¶ 99) as outlined in Hernandez,
The dissent has forgotten the importance of peremptory challenges, and how significant such challenges are in furthering the purpose of eliminating extremes of partiality on either side of a case. As noted earlier, the United States Supreme Court has characterized peremptory challenges as "essential to the fairness of trial by jury." Batson,
Dissenting Opinion
¶ 94. (dissenting). The majority ignores well-established case law. In so doing, the majority prohibitively raises the bar for a defendant raising a Batson challenge, lowers the bar for circuit courts that conduct Batson hearings, and neglects its duty to review circuit court determinations that no Batson violation has occurred, rendering the Constitution's prohibition on the exclusion of persons from jury service on account of race an illusion in Wisconsin courts. I therefore dissent.
¶ 95. Justice Thurgood Marshall, concurring in Batson v. Kentucky,
Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor's statement that he struck a juror because the juror had a son about the same age as the defendant, or seemed "uncommunicative," or "never cracked a smile" and, therefore, "did not possess thesensitivities necessary to realistically look at the issues and decide the facts in this case"? If such easily generated explanations are sufficient to discharge the prosecutor's obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory. 2
¶ 96. The majority today approves of the very behavior against which Justice Marshall warned.
¶ 97. The circuit court in the present case did not fulfill its duty under the third step of the Batson analysis. It upheld the prosecutor's peremptory strike of Dondre Bell, the lone African-American on the ve-nire, without looking beneath the surface of the prosecutor's race-neutral reasons for striking him and without considering the totality of the circumstances surrounding jury selection. It summarily concluded that the State "made its case" without any analysis or findings of fact on the ultimate issue of whether the State discriminated when it struck Bell.
¶ 98. Instead of holding the circuit court to its duty, the majority rubber stamps the circuit court's conclusion under the guise of deference. Moreover, the majority misconstrues the law to hold that the mere ability to assert easily generated, facially neutral reasons for striking a juror discharges the State's constitutional obligation to select a jury without discriminating on the basis of race, thereby lowering the bar for circuit courts that conduct Batson hearings and raising the bar for defendants bringing a Batson challenge.
¶ 99. This case should be remanded to the circuit court for a proper Batson hearing. First, the law is clear that the circuit court has a duty under the third step of
HH
¶ 100. This case involves step three of the Batson analysis. Under Batson, three steps must be taken for the defendant to successfully prove that the State's peremptory challenge of Bell violated her constitutional right to equal protection: (1) the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges on the basis of race; (2) if the defendant satisfies this threshold, the burden then shifts to the prosecution to articulate a race-neutral justification for the disputed challenges; and (3) if a race-neutral explanation is tendered, the court has a duty to determine whether, in light of the proffered justification, the defendant has satisfied the burden of proving purposeful discrimination.
¶ 102. The majority opinion, however, never decides whether the circuit court properly exercised its discretion under step three of the Batson analysis. The majority errs by conflating the second and third steps of the Batson analysis and by concluding that the State's satisfaction of step two is sufficient, in and of itself, to defeat a charge of purposeful discrimination. The majority opinion concludes, "[Biased on the race-neutral reasons offered by [the prosecutor] for her peremptory strike, we find that [the defendant] did not meet the burden of proof required to show that the State's reasons were not race-neutral."
¶ 104. The touchstone for the third step of the Batson inquiry is the credibility of the prosecutor: Does the circuit court believe that the prosecutor's race-
¶ 105. That said, however, an attorney's demeanor is far from the only evidence that a circuit court is obligated to consider under Batson's third step.
¶ 106. The third step of the Batson analysis therefore imposes a "duty"
II
¶ 109. In the present case, there is no evidence in the record that the circuit court fulfilled its step three duty under Batson.
¶ 110. When the circuit court concluded that the State "made its case," did it mean that the State provided race-neutral reasons? If so, which reasons provided by the State were race-neutral? Were any of them credible? When the circuit court concluded that the State had "just cause for the strike," did it mean that the State did not act with purposeful discrimination? "The limited record developed in the present case casts doubt on the trial court's ability to make the required finding regarding the prosecutor's intent, thereby undermining the deference due its conclusion."
¶ 112. Furthermore, the majority opinion here fails in its duty to review the decision of the circuit court. The majority is correct that under Hernandez v. New York,
¶ 113. As discussed above, the majority opinion's review of the circuit court's step three analysis , in this case is actually an examination of the circuit court's step two analysis. Instead of analyzing whether the circuit court erroneously determined that the State did not violate the equal protection clause of the Constitution when it struck Bell from the venire, the majority opinion explains that the defendant's prima facie case was rebutted when "the State offered several race-neutral reasons for exercising her peremptory challenge against Bell."
¶ 114. The majority also errs when it focuses exclusively on the circuit court's assessment of the prosecutor's subjective state of mind when offering race-neutral explanations for her strike. The burden in a Batson challenge is on the defendant, and ultimately it is the objective evidence in the record that must persuade the circuit court that a race-neutral reason is either pretextual or disingenuous. "Frequently the most probative evidence of intent will be objective evidence of what actually happened;"
¶ 115. In sum, the circuit court did not look beyond the State's proffered reasons. It did not consider the totality of the circumstances. It made no findings of
I — I HH HH
¶ 116. A close examination of the record — an examination that includes consideration of the totality of the circumstances — reveals some disturbing information about jury selection in the present case. In short, there are glaring signs in the record that Bell, the lone African-American juror on the venire, was singled out and treated differently than all other jurors, in part because of his race. Consequently, had the circuit court engaged in the inquiry demanded by Batson, it might have reached a different conclusion.
¶ 117. The State admits that the day before jury selection in the present case, it requested a report from the Beloit Police Department listing police contacts at Bell's address. There is no suggestion or indication that the prosecutor made a similar request for any other member of the venire. We do know, however, that it is not standard practice for Rock County assistant district attorneys to run police checks on the addresses of potential jurors.
¶ 120. The circuit court did not pay any attention to this information before it. The circuit court never considered that the prosecutor had not obtained police reports for any of the other venire members or any of the other listed addresses for the venire members.
¶ 122. The record makes clear that the prosecutor was well aware of Bell's race in advance of voir dire. Any citizen who is placed on a venire in Wisconsin must fill out a juror questionnaire. The juror questionnaire is required by law to include the race of the prospective juror as well as the address and occupation of each person.
¶ 123. In addition, the prosecutor anticipated that her peremptory strikes were going to be challenged and made arrangements before jury selection to have the challenge addressed outside of the presence of the venire. Prior to jury selection, when all parties were in chambers, the prosecutor made a special request that "if there is any objection to strikes of either party we either do it at the bench or in chambers." The court then clarified, "[Y]ou mean your peremptories?" The prosecutor responded, "Yes."
¶ 124. The prosecutor gave some indication of why she obtained the police report for Bell. In response to the circuit court's inquiry into whether she had a reason for striking Bell, the prosecutor responded:
Yes, your honor. As the court is probably well aware, our office as well as the federal prosecutor, has prosecuted a number of Bells who live in Beloit throughout the years. It's well known as a criminal name in Beloit. I would also note that he fives at 1216 WisconsinAvenue which is a high crime area in Beloit. Urn, I also yesterday had the Beloit Police Department run information on the 1216 Wisconsin address.
The inference to be drawn is that the prosecutor saw the name "Bell" and noted where he lived.
¶ 125. On its face, this would be a race-neutral explanation. Yet it is not so clear that race is uninvolved. Would the prosecutor have run a police check on Bell if his juror questionnaire identified him as Asian, Latino, or Caucasian? Familial relationship to people involved in the criminal justice system alone may not be the linchpin here.
¶ 126. For example, the record also reveals that one of the members of the venire was a man with the last name Gregory. The prosecutor's office in Beloit was prosecuting a man named Gregory at the same time that the defendant here was being prosecuted.
¶ 127. The circuit court did not engage in the inquiry required under step three of Batson and, as a result, the circuit court never noticed that Bell was treated differently than all other jurors on the venire and it never noticed the role that race played in the prosecutor's decision to treat Bell differently. As has been shown, a reasonable inference can be drawn from the totality of the circumstances in the present case that there was disparate treatment of venire member Bell based on race.
V
¶ 128. The ultimate burden of proving discrimination in a Batson challenge rests with the defendant. The defendant in the present case did not raise many of the above arguments during the Batson hearing, making it difficult to conclude here that the circuit court's decision to uphold the peremptory strike of Bell is clearly erroneous. Nevertheless, the circuit court has a duty to explore all of the relevant facts and make a finding about discrimination. "Batson requires a trial judge to ensure that a defendant on trial is afforded the equal protection of the law."
¶ 129. Under similar circumstances, appellate courts remand the matter to the trial court.
¶ 130. For the foregoing reasons, I dissent.
Batson v. Kentucky,
Batson,
Batson,
Majority op., ¶ 91.
Id., ¶ 92.
The Seventh Circuit, in Coulter v. Gilmore,
A facially neutral reason for striking a juror may show discrimination if that reason is invoked only to eliminate African-American prospective jurors and not others who also have that characteristic.... [A] procedure that omits the [step three] totality inquiry would exonerate the user of peremptories in virtually every case, unless the lawyer was foolish enough to announce her discriminatory purpose in so many words. Batson requires more....
Id. at 921 (citations omitted).
See, e.g., Turner v. Marshall,
Burkett v. Elem,
Id. The majority opinion omits the three words "and probably will" when quoting this passage, subtly removing the Supreme Court's emphasis on the likelihood that such fantastic reasons will not be considered sufficient under step three of Batson. See majority op., ¶ 32. Moreover, immediately after the majority opinion quotes this passage, it incorrectly asserts that "in addition to accepting 'silly,' 'superstitious' justifications for striking a juror, intuitive strikes have been upheld as valid strikes" under step three. Majority op., ¶ 33. The cases the majority relies upon for this proposition, United States v. Terrazas-Carrasco,
In Williams, for example, the Seventh Circuit held only that "intuitive assumptions that are not fairly quantifiable" are valid race-neutral reasons that a prosecutor may offer for excluding a juror at stage two, not that they are valid under step three. Williams,
Hernandez v. New York,
Id.
In State v. Walker,
[Wjhether the prosecution has eliminated all members of the defendant's race from the panel of prospective jurors; whether the race of the defendant or his or her witnesses is different than the race of the victim or the state's witnesses; whether the excluded jurors sharing the defendant's race responded to any questions of the judge or the lawyers in a manner that made them suitable candidates for exclusion by the prosecutor; how many venireper-sons share defendant's race; and the nature of the crime.
McLain v. Prunty,
Batson,
United States v. Hill,
[T]he third step in the Batson analysis is not satisfied by a conclusory statement that the prosecutor's explanation is race-neutral. At the third step, the trial court has the duty to determine if the defendant has established purposeful discrimination. The duty of assessing the credibility of the prosecutor's race-neutral reasons embodies the "decisive question" in the Batson analysis, and requires the trial court to consider all the facts and circumstances.
Id. ¶ 24 (citations omitted).
The majority correctly explains that a circuit court must consider the "totality of the circumstances" when determining whether the State discriminated in the exercise of its peremptory strikes. Majority op., ¶ 80 (quoting Hernandez v. New York,
United States v. Armstrong,
Coulter,
Id. at 921 (citing Batson,
Coulter,
Miller-El v. Cockrell,
The State, in its brief, asserts that Wisconsin need not adopt a list of factors to be considered during the third step of the Batson analysis, like a number of southern states have done,
Both the majority opinion and the State's brief acknowledge the ambiguity of the circuit court's ruling. The majority writes: "The circuit court found that Bollendorf had just cause for the peremptory strike, but did not elaborate on its decision. As a result, Bollendorfs peremptory strike was allowed to
Jordan v. Lefevre,
Id.
See, e.g., Jordan v. Lefevre,
The relationship between a court's "duty" and the opponent of the strike's "burden" under Batson is not unlike the relationship this court has created between a court's "obligation" and the beneficiary of an error's "burden" in harmless error review. It is well established in Wisconsin that the beneficiary of an error during trial has the burden of proving that the error was harmless, that is, that it is true beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. See State v. Vanmanivong,
Here, the circuit court did not address whether the prosecutor's proffered reasons were pretextual. The circuit court ruled summarily after a brief colloquy and did not properly conduct the third Batson step.
United States v. Alvarado,
See Riley v. Taylor,
United States v. Thomas,
The state courts in this case rejected Riley's Batson claim without discussing any of the ample evidence that throws into question the explanations offered by the prosecutor for striking two of the black jurors and there is nothing relevant in the record that might otherwise support the state courts' decisions. Thus, we do not know why the state courts found the State's explanation was plausible and credible in light of the other evidence. It is because of the state courts' omission of a requirement under the third step of the Batson inquiry — of an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances —that the State's argument founders.
Miller-El,
Miller-El,
Majority op., ¶ 79.
See majority op., ¶¶ 80-91. Moreover, the majority imputes some of its own conclusions to the circuit court, in an effort to bolster the circuit court's determination. For example, the majority asserts that "[h]ere, the circuit court judge relied on, inter alia, Bell's lack of response to general voir dire questions" and that this silence "appeared to show a lack of candor, when combined with the information in the police report" when determining if the prosecutor's explanations were credible. Majority op., ¶ 56. There is no evidence in the record that the circuit court even noticed that Bell did not respond to any questions asked during voir dire, let alone whether the circuit court drew the conclusion from this silence that Bell was being less than honest.
Washington v. Davis,
In State v. Gregory,
More than just creating an avenue for gauging dishonesty, the police report made it possible for the prosecutor to strike Bell regardless of his answers during voir dire. She set him up. Had he answered affirmatively to the question whether he knew somebody who had been convicted of a crime, the prosecutor would have had grounds to use a peremptory strike against him. Had he failed to answer that question, as he did here, the prosecutor could use the police report as grounds for striking him. No other juror was destined to be struck in advance of voir dire as a result of pretrial actions taken by the prosecutor.
See majority op., ¶ 10.
It is worth explaining that Bell did not, in fact, evidence any dishonesty by his failure to respond. The prosecutor asked three specific questions about crime of the entire venire for which the police report might be used to indicate that Bell's
The police report does not indicate that anybody living at Bell's address has ever been arrested, convicted, or prosecuted for a crime. It does not indicate that Bell, the venire member, lived at the address during the time of any of the police contacts. It does not show that Bell, the venire member, is related to anyone involved in the incidents leading to police contact. In fact, the defendant in Gregory,
he is not related to convicted cocaine dealer Christopher Bell; that he did not live at 1216 Wisconsin Avenue between September, 1995 and May, 1997 because he was attending college in Marshall, Minnesota; that if there were any police contacts at all with 1216 Wisconsin Avenue during that period he was unaware of them; and that he spent a week on jury duty in April, 1999 and was struck from several jury panels.
Gregory, Appellant's Br. at 9.
Thus, the prosecutor's decision to strike Bell out of a concern that he would be dishonest was, as she admitted during the Batson hearing, merely an assumption, not a decision based on fact.
The record reveals that the venire in this case consisted of 20 people and that eleven jurors aside from Bell sat silently through the entire jury selection. Bell was the only juror who sat silently who was struck by the prosecutor.
If a police check was run on other jurors as well, what did the police reports indicate? Did any of those jurors have contact with the police that they did not admit during voir dire?
The record does not reveal whether any other members of the venire had indicated that they were unemployed or that their employment "varies." See Wylie v. Vaughn,
Because there is a far greater percentage of unemployed minorities than there are unemployed persons in the general population, giving prosecutors carte blanche to strike jurors simply because they are unemployed creates a far smaller pool of potential minority jurors.... Peremptory strikes on the basis of unemployment should therefore he considered suspect.
Majority op., ¶ 74 ("In this case the record shows that the prosecutor had done research about Bell, which stands in stark contrast to the prosecutor in Walker who struck the only African-American without knowing anything about the juror.").
It is worth noting that the circuit court, in its post-conviction order, also commended the prosecutor for doing "her
At the Batson hearing, the prosecutor stated that she did not ask Bell individual questions about the police report during voir dire because she did "not want to appear as though [she] was singling him out under the circumstances." The circuit court accepted this explanation without hesitation. The majority goes so far as to sympathize with the predicament in which the prosecutor found herself — accused of discrimination if she did not ask Bell individualized questions and accused of discrimination if she did. Majority op., ¶ 89. What neither the circuit court nor the majority appreciates is that the prosecutor had already singled out Bell when she obtained and used the police report during voir dire.
See Wis. Stat. § 756.04(6); Legislative Council Comments, 1991, Wis. Stat. Ann. § 756.04 (West 2001). The questionnaire must also include "information necessary to determine if the person is qualified to serve as a juror in that circuit court" and "the prospective juror's declaration that the responses are true to the best of his or her knowledge," and "may request other information that the court needs to manage the
See also State v. Tucker,
During the Batson hearing, the prosecutor also admitted that she knew from Bell's "juror card" that his employment varied.
"As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race — more accurate, indeed, than social class." United States v. Bishop,
It is realistic to believe that the prosecutor in this case knew of the prosecution of Gregory since she was in contact with the prosecutor of the Gregory case. Jury selection in the Gregory trial began the day after jury selection in this case, and as mentioned above, Bell was also on the venire in the Gregory case. The prosecutor in this case passed along her police report to the prosecutor in the Gregory case prior to voir dire, which resulted in Bell's being struck for the second day in a row.
See SBC Janesville Area Smart Yellow Pages (April 2003).
Jordan,
See State v. Gregory,
Dissenting Opinion
¶ 131. (dissenting). For the reasons set forth in Parts I and II of Chief Justice Abrahamson's dissent, I agree that the majority's Bat-son analysis is flawed and that it erroneously concludes that the third step of Batson was satisfied in this case. I therefore join those parts of that dissent. I write separately, however, because I disagree with portions of the analysis in Parts III and IV of her dissent.
¶ 132. The majority correctly states that "this case concerns the third step of the Batson test." Majority op., ¶ 73. It also correctly notes that, under the
¶ 133. The majority ignores the circuit court's proper role by focusing its step three analysis on confirming that the State advanced race neutral reasons, which is step two of Batson. The Chief Justice's dissent characterizes the majority's approach as "conflating the second and third steps of the Batson analysis." Chief Justice Abrahamson's Dissent, ¶ 102. Further, her dissent concludes that, as a result of the conflation, the majority errs "by concluding that the State's satisfaction of step two is sufficient, in and of itself, to defeat a charge of purposeful discrimination." Id.
¶ 134. I agree with these criticisms of the majority's step three analysis. By conflating step three into step two, the majority fundamentally undermines an important part of the process established by Batson to address discrimination in the jury selection process —namely, the circuit court's role in evaluating the evidence to determine whether purposeful discrimination has occurred. I therefore agree with the conclusions set forth in Part I of the Chief Justice's dissent.
¶ 135. I also agree that this record is insufficient for us to evaluate whether the circuit court properly engaged in the analysis required by step three of Batson. It is unclear whether the circuit court weighed the credibility of the testimony and made a determination that purposeful discrimination had not been estab
¶ 136. However, I part ways with the Chief Justice with regard to portions of Parts III and IV of her dissent. Batson clearly places a duty on the circuit court to evaluate all evidence presented by the parties that is relevant to whether purposeful discrimination has occurred. However, I am not convinced that Batson requires an independent inquiry by the circuit court to the extent suggested in Part III or that the required analysis is as extensive as set forth in Part IV
¶ 137. While it is certainly within the circuit court's discretionary authority to take the initiative in developing evidence of discrimination, the court is not required to do so. It is the defendant's, not the circuit court's, burden of persuasion with respect to the issue of purposeful discrimination. See State v. Walker,
¶ 138. I would remand to the circuit court to engage in the analysis required to satisfy step three of Batson. If the court determined that there was no purposeful discrimination, it would affirm the conviction. If the court determined that there was purposeful discrimination, the proper remedy would be a reversal of the conviction and a new trial. In either event, the
¶ 139. I am authorized to state that JUSTICE DIANE S. SYKES joins this dissent.