STATE оf Wisconsin, Plaintiff-Respondent, v. Lionel D. WALKER, Defendant-Appellant.
No. 88-2058-CR
Supreme Court of Wisconsin
Argued November 1, 1989. Decided April 2, 1990.
453 N.W.2d 127
For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief (in court of appeals) was Donald J. Hanaway, attorney general.
CALLOW, WILLIAM G., J. This case is before this court on certification from the court of appeals pursuant to
Walker, who is black, raises three issues on appeal. First, Walker contends that he was denied his federal and state constitutional right to effective assistance of counsel because his counsel did not object when the prosecutor used a peremptory challenge to exclude the only black person from the petit jury. Second, Walker claims he was denied his federal and state constitutional right to effective assistаnce of counsel when his counsel failed to move to suppress lineup and in-court identifications as the forbidden fruits of an allegedly unlawful arrest. Third, Walker argues that the circuit court erred in refusing to admit evidence concerning a crime that occurred when he was incarcerated and that he claims was similar to those for which he was on trial.
We first conclude that Walker has established, prima facie, that the prosecutor used a peremptory challenge in a racially discriminatory manner during the jury selection process at his trial, that the prosecutor‘s explanation for the challenge was not sufficient to rebut the prima facie case, and that, as a result, Walker‘s convic-
We begin by setting forth the facts relevant to the issues raised by Walker. Between August 27, 1986 and September 1, 1986, armed robberies, which were executed in similar fashion, occurred in four city of Kenosha taverns: Jesse‘s Bar, V.J.‘s Lounge, Friar Pub Tavern, and the Kenosha Tap. In all four cases, a black man entered the tavern, ordered Old Style beer, and then, speaking quietly, told the bartender to give him the money from the cash register. In each case, the man held his right arm inside his outer garment to create the appearance that he had a gun and departed immediately after receiving the money. All four robberies occurred in either the late evening or early morning hours, prior to the tavern‘s closing.
On September 4, 1986, at approximately 9:15 p.m., Walker was arrested in the fenced-in backyard of his home.1 The arrest was made without a warrant. The next morning Walker, who was a suspect in the four above-mentioned armed robberies, was placed in a lineup
On September 25, 1986, a criminal complaint was filed, charging Walker with four counts of armed robbery. Prior to trial, Walker‘s counsel filed two motions that are relevant to the arguments Walker raises on appeal. First, on September 30, 1986, Walker‘s counsel filed a motion to dismiss the action on the ground that the court lacked jurisdiction because Walker was brought before the court pursuant to an illegal arrest. The circuit court denied the motion to dismiss, citing State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986), in which this court held that an illegal arrest would no longer deprive the court of personal jurisdiction over the defendant. Second, on November 7, 1986, Walker‘s counsel filed a motion to suppress evidence with respect to lineup, photographic, and in-court identifications of Walker on the ground that any such identification would violate multiple federal and state constitutional rights. Walker‘s counsel orally withdrew this motion at a December 5, 1986 hearing, explaining, in part, as follows:
I have realized that since I made the motion, that Mr. Walker was represented by an attorney from the Public Defender‘s Office . . . at the line-up, and . . . no objections as to police procedures . . . were made by her at that time . . . . I don‘t . . . have any inde-
pendent evidence at this time to support my burden . . . [with respect to] that motion . . . . If there would be any information between now and then gathered until the time of trial, I would renew it, but at this time I am not aware of any.
The jury was selected for Walker‘s trial on December 15, 1986. Of the twenty venirepersons, one was black. During the voir dire examination of potential jurors, the black 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 black venireperson any specific questions. Because only twelve people ultimately would serve as jurors at Walker‘s trial, the prosecutor and defense counsel each were allowed to use peremptory challenges to eliminate four venirepersons from the pool of twenty. With the third of his four peremptory challenges, the prosecutor eliminated the blaсk venireperson. Defense counsel did not object.
Walker‘s three-day jury trial on the four counts of armed robbery commenced on December 15, 1986. During its case-in-chief, the prosecution introduced lineup evidence from all five eyewitnesses, and each eyewitness made an in-court identification of Walker as the perpetrator of the crime that each had observed. In addition, evidence that two eyewitnesses had identified Walker at Walker‘s preliminary examination was also introduced by the prosecution.
The theory of defense was that the four armed robberies in question had been committed by someone else, Walker having been misidentified as the perpetrator. In an effort to prove that theory, Walker introduced evidence about two armed robberies that occurred while he was incarcerated pending his trial for the four armed robberies in question. These two armed robberies were
At the conclusion of the trial, the jury found Walker guilty of all four counts of armed robbery in violation of
On July 11, 1988, Walker filed a post-conviction motion, alleging that he was denied his state and federal constitutional right to effective assistance of counsel. Walker asserted that his trial counsel was ineffective in two respects. First, Walker claimed that trial counsel was ineffective because he failed to make a Batson3 objection when the prosecutor used a peremptory challenge to remove the only black person from the venire. Second, Walker alleged trial counsel wаs ineffective because he did not attempt to suppress lineup and in-court identification evidence as the fruit of his allegedly unlawful arrest.
A hearing was held on the post-conviction motion on September 29, 1988, at which Walker‘s trial counsel testified. With respect to his failure to make a Batson
With respect to his failure to attempt to suppress the lineup and the in-court identification evidence, trial counsel testified that he knew at trial that Walker was arrested in the backyard of his home without a warrant. Trial counsel further testified that he knew that it was unlawful to make an arrest at a suspect‘s home without a warrant, but that he never thought to challenge the identifications as the fruit of an unlawful arrest. Trial counsel made it clear that he would have preferred to have the identification evidence excluded.
The prosecutor also appeared at this hearing. With respect to the Batson issue, the prosecutor stated that he had no memory of any venireperson being black and that, in any event, he had no discriminatory intent. The
The circuit court denied Walker‘s motion for post-conviction relief in its Decision and Order filed on October 14, 1988. In the Decision and Order, the circuit court first addressed Walker‘s claim that he was denied his constitutional right to effective assistance of counsel because trial counsel failed to make a Batson objection during the jury selection process. The circuit court found that, although trial counsel erred in not lodging a Batson objection, the error did not constitute deficient performance. The circuit court also found that, had the Batson objection been made, the objection would not have succeeded because there was no evidence that purposeful discrimination tainted the jury selection process. According to the circuit court, Walker had failed to make out a prima facie cаse of purposeful discrimination. The circuit court noted that the prosecutor was unable to remember that one of the venirepersons was black. The circuit court ruled that the fact that Walker was tried by an all-white jury did not deprive him of a fair trial and that the result of the trial is reliable.
The circuit court then turned to a discussion of whether Walker was denied his right to effective assistance of counsel because trial counsel failed to attempt to suppress the lineup and in-court identifications as the fruits of an unlawful arrest. The circuit court ruled that
The defendant was arrested in yard [sic] outside of his home that was in plain view of police officers as they arrived. The “plain view” exception to the warrant requirement justified his seizure. The officers arriving at the home went there with extremely strong probable cause to believe that the defendant committed a felony; the defendant was in plain view; the discovery was inadvertent for these purposes, in that they had no way of knowing that he was going to be outside the home when they arrived; and if the defendant would not have come out of the house voluntarily, they could have surrounded the home and obtained a search or arrest warrant since they would have had probable cause for both. The court relies upon the cases of Conrad v. State, 63 Wis. 2d 616 (1974) and Bies v. State, 76 Wis. 2d 457 (1977).
This case is presently before this court on certification from the court of appeals pursuant to
I.
Walker‘s first contention is that he was denied his state and federal constitutional right to effective assis-
In the alternative to the ineffective assistance of counsel claim, Walker, relying upon this court‘s decision in State v. Cleveland, 118 Wis. 2d 615, 348 N.W.2d 512 (1984), urges this court to address the validity of the prosecutor‘s peremptory challenge as though Walker‘s trial counsel had made the proper objection during the jury selection process. In Cleveland, it was argued by the State that the defendant had waived his right to present his fourth amendment claim by failing to bring the proper pretrial motion and by failing to make the proper objection at trial. The defendant, on the other hand, claimed that he was denied his constitutional right to effective assistance of counsel since his trial counsel‘s failure to bring the proper pretrial motion and to object at trial was due to trial counsel‘s inadequate knowledge of the relevant law. This court noted that, “[a]lthough objections which have been waived are not reviewable as a matter of right, this court may consider such objections if it chooses.” Id. at 632. This court chose to address the fourth amendment claim on the merits even though trial counsel failed to preserve the claim. Because the defendant‘s claim was resolved in this fashion, this court did not reach the question of ineffective counsel. Id. at 632-33.
In this case, it is undisputed that Walker‘s trial counsel was not aware of the Supreme Court‘s landmark decision in Batson. It is also undisputed that at some point in the proceedings Walker told trial counsel that he thought that the prosecutor‘s peremptory challenge on the black venireperson was illegal based on a newspaper article he had read about the Batson decision, yet
Walker argues that he was denied his constitutional right to equal protection of law4 when the prosecutor used a peremptory challenge to exclude the only black venireperson from the petit jury, relying on the decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). Our analysis of Walker‘s claim thus begins with the Batson decision, itself.
In Batson, the defendant, a black man, was charged with second-degree burglary and receipt of stolen goods. During the jury selection process at the defendant‘s trial, the prosecutor used peremptory challenges to exclude from the petit jury the only four black persons on the venire, leaving an all-white jury. In the United States Supreme Court, the defendant argued that the prosecutor‘s removal of every potential black juror violated his rights under the sixth and fourteenth amendments to a jury drawn from a cross section of the community and to an impartial jury. The Court decided that proper resolution of the defendant‘s challenge depended upon equal protection principles, as was argued by the state of Kentucky; therefore, the Court did not address the defen-
The Court initially noted that in Swain v. Alabama, 380 U.S. 202 (1965), it recognized that the
Under Swain, in order for a black defendant to make out a prima facie showing that the state had used peremptory challenges in contravention of equal protection principles, the defendant was required to show that a prosecutor used such challenges in a racially discriminatory manner “in case after case . . . with the result that no Negroes ever serve on petit juries.” Swain, 380 U.S. at 223. Thus, black defendants could not rely solely upon the facts of their particular cases alone to make out a prima facie showing that prosecutors had used peremptory challenges in violation of the
The Court in Batson noted that the Swain evidentiary burden for making out a prima facie case had “placed on defendants a crippling burden of proof, [in effect immunizing] prosecutors’ peremptory challenges . . . from constitutional scrutiny.” Batson, 476 U.S. at 91-92. The Court rejected the Swain evidentiary burden for making out a prima facie equal protectiоn violation,
After rejecting this portion of the Swain decision, the Court set forth what is required of a defendant in order to establish a prima facie case of purposeful discrimination with respect to the prosecutor‘s use of peremptory challenges:
[T]he defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant‘s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and аny other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Id. (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)) (citations omitted). With respect to the third element of the prima facie case, the Court provided two examples of “relevant circumstances” a trial court should consider. First, the Court noted that a “pattern” of strikes against venirepersons of the same race as the defendant might
The Court did not further elaborate upon what it meant by “all relevant circumstances.” Id. at 96-97. However, other courts have considered the relevant circumstances trial judges should consider in assessing whether the defendant has established a prima facie case, finding the following factors significant:6 whether the prosecution has eliminated all members of the defen-
According to Batson, if the trial judge 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 black jurors.” Batson, 476 U.S. at 97. Although the Court recognized that this explanation “requirement imposes a limitation in some cases on the full peremptory character of the historic challenge,” the Court emphasized “that the prosecutor‘s explanation need not rise to the level justifying exercise of a challenge for cause.” Id. The prima facie case is not rebutted, the Court noted, when the prosecutor states that venirepersons were challenged on the ground that they would favor the defendant because they were of the same race as the defendant. Id.
The Court in Batson also stated that the prosecutor‘s explanation must be clear and reasonably specific. Id. at 98 n.20. This requirement that the explanation be clear and reasonably specific is not satisfied by the prosecutor‘s mere denial of intent to discriminate or the prosecutor‘s mere affirmance of a good faith intent. Id. at 98. See also Chalan, 812 F.2d at 1314 (Concluding that the following explanation did not satisfy the “clear and reasonably specific” requirement: “based upon his background and other things in his questionnaire, I just elected to strike him.“).
In addition to being neutral and clear and reasonably specific, the explanation must be “related to the particular case to be tried.” Batson, 476 U.S. at 98. The New Jersey Supreme Court determined that the prosecutor‘s explanation was unrelated to the case to be tried in State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986),
Once the defеndant has established a prima facie case and the prosecutor has come forward with an explanation that is neutral, clear and reasonably specific, and related to the case to be tried,11 the trial court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98. The defendant has the ultimate burden of persuasion with respect to the issue of purposeful discrimination. Id. at 94 n.18.12
We conclude that the circuit court erred in determining that Walker failed to establish a prima facie сase.13 Our review of the record shows that Walker is black, that only one of the venirepersons at Walker‘s trial was black, that the prosecutor used a peremptory challenge to exclude this sole black venireperson from the petit jury, and that Walker‘s counsel would not have used a peremptory challenge to strike this venireperson. The circuit court noted that blacks account for less than three percent of the population of Kenosha county and that the prosecutor in this case is not known for customarily striking blacks from the venire. The record also shows that this black 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
Because we conclude thаt Walker has made a prima facie showing of purposeful discrimination, the burden shifts to the prosecution to explain its actions. In its decision regarding Walker‘s post-conviction motion, the circuit court did not mention the prosecutor‘s explanations, apparently because the circuit court found that Walker failed to make out a prima facie case. Our review of the record shows that the prosecutor provided two explanations for using a peremptory challenge to strike the sole black venireperson. 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 pretextual. Of the prosecutor‘s four peremptory challenges, only one other was used to strike a potential juror with a juror number greater than 906, and seven potential jurors with numbers higher than 906 ultimately served on the jury.
II.
Walker‘s second contention is that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to move to suppress both lineup and in-court identifications of Walker as the fruit of an unlawful arrest. Because we have already decided that Walker is entitled to a new trial, it is unnecessary to determine whether Walker‘s trial counsel was ineffective for failing to make such a motion. Rather, we need to decide only whether Walker‘s arrest was unlawful, and, if so, whethеr the identification evidence is the fruit of the unlawful arrest.
The first question we address is whether Walker‘s arrest was unlawful. The only significant references in the record to Walker‘s arrest are found in the transcript of the hearing held on Walker‘s motion for post-conviction relief. At this hearing, Walker provided the following testimony on direct examination regarding the circumstances surrounding his arrest:
Q. Mr. Walker, do you recall when you were originally arrested in this case?
A. Yes, I do.
Q. When was that?
A. It was September 4, 1986.
Q. Do you recall where you were at the time of the arrest?
A. I was at my home, my backyard.
Q. Is there a fence around your backyard?
A. Yes, there is.
Q. I‘m sorry. Did you say what time it was that you were arrested?
A. It was approximately 9:15. Between 9:15, I think—between 9:00 and 9:30 in the p.m.
Q. p.m.
A. p.m., exactly.
Q. Did any of the arresting officers ever show you a warrant?
A. No.
On cross-examination, Walker further testified about his arrest as follows:
Q. Mr. Walker, relative to your arrest for a moment, you were told the reasons why you were arrested, weren‘t you?
A. No, I was not.
Q. You were just taken into custody—
A. Yes.
Q. —by the police on September 4th?
A. On September 4th, right.
Q. Do you remember what time on September 4th?
A. Approximately 9:00, 9:30 p.m.
Q. p.m. or a.m.?
A. p.m.
Q. So it was dark out?
A. Yes, it was.
Q. You recall what you were doing in the backyard?
A. I was bedding my dog down.
Q. Okay. You were not in the house itself?
A. No, I wasn‘t.
Q. Okay. You were arrested by police officers in uniform?
A. I was arrested by plainclothed detectives and police officers in uniform.
. . . .
Q. You were never told of any reasons why you were arrested then?
[DEFENSE COUNSEL]: Objection, asked and answered.
THE COURT: It has been . . . . My question, sir, is how did they get there. Did they come through an alley or around the side of the house? How‘d they get there.
THE WITNESS: They came from—They came in through up in the driveway into the backyard into the house. There were police at the doоr, the front door of the house, from what I understand, and there were police on the side of the house pointing at the window. Obviously, they thought I was in the house.
THE COURT: I see.
THE WITNESS: And I was in the backyard on the side of the garage with my dog, bedding my dog down for the evening. I had been jogging and I just came back from jogging. I bedded my dog down, when I heard—I heard a noise and I turned and the police—plainclothed detective was standing there,
and he said, “Don‘t move, brother, or I‘ll blow your head off.” That‘s when I was arrested.
THE COURT: And you were still in the backyard?
THE WITNESS: I was in the backyard.
THE COURT: Where did the officer come from?
THE WITNESS: From the driveway.
THE COURT: I see. All right.
The District Attorney offered no evidence at this hearing concerning Walker‘s arrest. The record thus shows that, at the time of Walker‘s warrantless nighttime arrest, Walker was in the fenced-in backyard of his home.
In deciding whether Walker‘s arrest was lawful, we begin by examining the nature of the protection that the fourth amendment provides to the home and the land next to the home.14 In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that the fourth amendment, made applicable to the states by the fourteenth amendment, prohibits police from making a warrantless and nonconsensual entry into a felony suspect‘s home to arrest the suspect, absent probable cause and exigent circumstances. The Court has also determined that the fourth amendment protections that attach to the home likewise attach to the curtilage, which is defined generally as “the land immediately surrounding and associated with the home.” Oliver v. United States, 466 U.S. 170, 180 (1984). In Oliver, the Court reasoned that the curtilage receives the fourth amendment protections that attach to the home because,
“[a]t common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man‘s home and the privacies of life.’ ” Id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
Read together, Payton and Oliver require that police obtain a warrant before entering either the home or its curtilage to make an arrest absent probable cause and exigent circumstances. Under Payton and Oliver, therefore, absent probable cause and exigent circumstances, Walker‘s warrantless arrest, although not occurring in his home, was unlawful if his fenced-in backyard falls within the curtilage of his home.
In Oliver, the Court stated that the reach of a home‘s curtilage was in general determined “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver, 466 U.S. at 180.15 The Court explicitly stated the factors relevant to defining the extent of a particular home‘s curtilage in United States v. Dunn, 480 U.S. 294, 301 (1987):
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of uses to which the area is put, and the steps taken by the
According to the Court in Dunn, these factors help focus the inquiry on the proper question; namely, “whether the area in question is so intimately tied to the home itself that it should be placed under the home‘s ‘umbrella’ of fourth amendment protection.” Id. Applying these factors to the case at hand, it is obvious that Walker‘s fenced-in backyard falls within the curtilage of his home.
Because Walker was arrested within the curtilage of his home without a warrant, his arrest was unlawful in the absence of probable cause and exigent circumstances. Assuming that probable cause to arrest existed, the prosecutor did not, at the post-conviction motion hearing, offer proof with respect to exigent circumstances, although the prosecutor was given the opportunity to do so. The prosecutor had the burden of proof to show exigent circumstances. See, е.g., Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984).16
Moreover, the circuit court erred in determining that Walker‘s arrest was justified under the plain view exception to the warrant requirement. Assuming that the plain view exception applies to the seizure of persons, it is clear that the “plain view alone is never enough to justify [a fourth amendment seizure] . . . .” Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (emphasis in original). That plain view alone can never justify a warrantless seizure, the Court in Coolidge went on to state, “is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ ” Id. Even if Walker became visible to police as they attempted to surround his house, no circumstances have been shown that justify his seizure as he occupied a protected area.
the . . . apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Wong Sun, 371 U.S. at 488 (quoting Maguire, Evidence of Guilt, 221 (1959)). The State has the burden to prove that the identification evidence in question is admissible once the defendant has established the “primary illegality.” See Brown v. Illinois, 422 U.S. 590, 604 (1975).
We turn first to the question of whether the lineup identification evidence is the fruit of the unlawful arrest. The linеup, itself, was held on September 5, 1986, at 9:30 a.m., approximately twelve hours after Walker‘s arrest. Five eyewitnesses to the armed robberies, all of whom testified at Walker‘s trial, viewed the lineup. In determining whether lineup identification evidence from these witnesses should have been admitted at trial, we agree with the suggestion of one commentator that the analysis is the same as the analysis undertaken by the United States Supreme Court in Brown, where the question was whether a confession was the fruit of an unlawful arrest. 4
the temporal proximity of the arrest and the [lineup], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. . . .
Brown, 422 U.S. at 603-04 (citations omitted).
The first Brown factor—the temporal proximity of the arrest and the lineup—is significant only in the sense that it may reveal the purpose of the arrest (factor three). 4
Because the record in this case does not permit us to apply these factors to the case at hand, this issue must be resolved on remand. The record shows that a parole hold was placed on Walker the day of the lineup, September 5, 1986, but there is no showing in the record as to the precise time that the hold went into effect. A parole hold would be relevant to the “intervening circumstances” factor of the Brown test.
We next turn to the admissibility of the in-court identification of Walker. If on remand the circuit court determines that the lineup identification evidence is the fruit of the unlawful arrest, the circuit court must then determine whether the in-court identification by any witness who viewed Walker in the linеup must also be excluded as the fruit of the unlawful arrest. See United States v. Crews, 445 U.S. 463 (1980). In determining whether an in-court identification is the fruit of an unlawful arrest, the primary question is whether the lineup identification, suppressed as the fruit of an unlawful arrest, has affected the reliability of the in-court identification, making it inadmissible as well. A particular witness‘s in-court identification is admissible if the court finds it “rest[s] on an independent recollection of [the] initial encounter with [the perpetrator], uninfluenced by the [lineup] identification[ ] . . . .” Id. at 473. The factors relevant to this inquiry are as follows:
the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant‘s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts . . . concerning the conduct of the lineup.
United States v. Wade, 388 U.S. 218, 241 (1967) (footnote omitted).18
III.
The third issue this court addresses is whether the circuit court erred when it prevented the jury from hearing evidence about a crime that occurred while Walker was incarcerated, a crime that Walker alleges was similar to those for which he was on trial. Walker‘s offer of proof revealed that at approximately 11:00 p.m. on September 26, 1986, a light-skinned black male with liver spots entered the Koretz Tavern in the city of Kenosha and told the bartender that he wanted the money from the cash register.20 The man spoke quietly and held his right hand inside his jacket, creating the appearance that he had a gun. After receiving the money, he departed on foot. Although the circuit court excluded evidence with respect to this crime, the jury was allowed to hear evidencе with respect to two other allegedly similar armed robberies that occurred while Walker was incarcerated.
A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Additionally, and most importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. It is recognized that a trial court in an exercise of its discretion may reasonably reach a conclusion which another judge or another court may not reach, but it must be a decision which a reasonable judge or court could arrive at by the consideration of the relevant law, the facts, and a process of logical reаsoning.
As previously stated, the circuit court excluded evidence about the Koretz Tavern robbery, deeming it irrelevant because of the dissimilarity in appearance between the perpetrator of that crime and the perpetrator of any of the crimes for which Walker had been charged. The circuit court made the determination based on the facts of the case, the relevant law, and a process of logical reasoning, and the determination is one that a reasonable court could make. Thus, it was not an abuse of discretion for the circuit court to exclude as irrelevant evidence about the Koretz Tavern robbery. Because the evidence is irrelevant, the exclusion of the evidence did not violate Walker‘s constitutional right to present a defense since “a defendant has no right, constitutional or otherwise, to present irrelevant evidence.” State v. Robinson, 146 Wis. 2d 315, 332, 431 N.W.2d 165 (1988).22
By the Court.—The judgment and order of the circuit court are reversed.
A claim of ineffective assistance brought pursuant to the sixth amendment to the United States Constitution must meet the test articulated by the United States Supreme Court in Strickland. State v. Moffett, 147 Wis. 2d 343, 352, 433 N.W.2d 572 (1989). Under that test, the
Walker‘s first claim of ineffective assistance relates to counsel‘s failure to make a Batson objection during jury selection. In deciding Batson, the United States Supreme Court contemplated that a minority defendant would object to the prosecutor‘s allegedly discriminatory use of peremptory challenges before members of the venire are dismissed and before the jury is impaneled. Batson, 476 U.S. at 99-100 n.24. See also Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. Crim. L. & Criminology 1, 18-19 (1988). A timely Batson objection ensures that the circuit court is able to contemporaneously review the prosecutor‘s reasons for striking members of the defendant‘s race and to easily cure any racial discrimination in the jury selection process before trial. Id. at 18.
The majority observes, at p. 176 n.12, that Batson requires a timely objection. However, the majority ignores this requirement and reviews the merits of Walker‘s Batson claim as if it were timely raised.1 In the
I therefore believe that Walker‘s claim of ineffective assistance must fail on the prejudice prong of the Strickland analysis. At the post-conviction hearing, Walker made absolutely no showing that he had been deprived of a trial before a fair and impartial jury or that the result of his trial was unreliable. Accordingly, I would hold that Walker failed to establish that there is a reasonable probability that, but for counsel‘s omission, the result of his trial would have been different. If a court is able to dispose of a claim of ineffective assistance on the ground of insufficient prejudice, it need not determine whether counsel‘s performance was also deficient. Strickland, 466 U.S. at 697.
For the reasons stated, I dissent. I am authorized to state that Justice Roland B. Day joins in this dissenting opinion.
Notes
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.