No.
95-2280-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v. ERRATA SHEET
LYNN H. MICKLE,
Defendant-Appellant.
|
Marilyn
L. Graves Clerk
of Court of Appeals 231
East, State Capitol Madison,
WI 53702 |
Peg
Carlson Chief
Staff Attorney 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Court
of Appeals-District I 633
West Wisconsin Avenue Milwaukee,
WI 53203 |
Court
of Appeals-District II 2727
N. Grandview Blvd. Waukesha,
WI 53188-1672 |
|
Court
of Appeals-District III 740
Third Street Wausau,
WI 54401-6292 |
Court
of Appeals-District IV 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Jennifer
Krapf Administrative
Assistant 119
Martin Luther King Blvd. Madison,
WI 53703 Eileen
A. Hirsch Asst
State Public Defender P.O.
Box 7862 Madison,
WI 53707-7862 |
Hon.
Joseph E. Wimmer 515
W. Moreland Blvd. Waukesha,
WI 53188 Kevin
M. Osborne Asst
District Attorney 515
W. Moreland Blvd. Waukesha,
WI 53188 |
PLEASE TAKE NOTICE that
the attached opinion is to be substituted for the above-captioned opinion which
was released on March 27, 1996.
Dated this 3 day of March, 2005.
|
COURT OF APPEALS DECISION DATED AND RELEASED March 27, 1996 |
NOTICE |
|
A
party may file with the Supreme Court a petition to review an adverse
decision by the Court of Appeals. See
§ 808.10 and Rule 809.62, Stats. |
This
opinion is subject to further editing.
If published, the official version will appear in the bound volume of
the Official Reports. |
No. 95-2280-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LYNN
H. MICKLE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
NETTESHEIM, J. Lynn
H. Mickle appeals from a judgment of conviction for disorderly conduct pursuant
to § 947.01, Stats.[1] The issue on appeal is whether the State
improperly struck four male members from the jury pool in violation of Mickle's
equal protection rights. We conclude
that the State's strikes were gender neutral and did not otherwise demonstrate
purposeful discrimination.
Before we recite the
facts, we set out some introductory law on the subject. In Batson v. Kentucky, 476
U.S. 79, 89 (1986), the Supreme Court held that the Equal Protection Clause of
the Fourteenth Amendment forbids the state from challenging potential jurors on
the basis of race. In J.E.B. v.
Alabama ex rel. T.B., 511 U.S. ___, ___, 114 S. Ct. 1419, 1422
(1994), the Supreme Court extended the Batson principle to juror
strikes based on gender. See also
State v. Joe C., 186 Wis.2d 580, 585, 522 N.W.2d 222, 224 (Ct.
App. 1994). We will later address the
methodology by which a trial court applies these principles.
The facts are
undisputed. Mickle was charged with
disorderly conduct and battery as the result of an alleged domestic abuse
incident. When making its four
peremptory strikes, the State struck four males. Mickle immediately objected.
We set out the prosecutor's initial response in detail:
Judge, the reasons I struck those jurors
was when I was looking at them they didn't make eye contact with me, and I
tried to—I know none of them admitted to being involved in batteries or
anything like that but when I looked at them to me they looked like individuals
who would use violence against their kids or—I mean, I am just speculating as I
sit there and try to guess what they are like at home. I had—That is one of the reasons I struck
the jurors as I did; and in my last selection, Judge, I almost struck Anne
Konczal. I was debating. To me it was like eenie-meenie-miine mo as I
was sitting here. I was going
eenie-meenie-miine-mo and I ended up picking Richard LaBar. It was between him and Anne Konczal. It was those two I wanted to strike, but I
don't know if you saw me waving my pen but I was going eenie-meenie-miine mo
and it landed on Richard LaBar as the person to strike.
Really,
everybody in the panel was good for me.
I didn't really know who to strike.
The trial court then
asked the prosecutor whether the strikes were gender based. The prosecutor responded:
No
sir ¼ but
I basically looked at those people and I said who would—who seems to be
involved in violence in the home, and I could not see any of that in any of the
women's eyes but I saw it in the four men that I selected.
The trial court then
overruled Mickle's objection, stating, “The Court does not believe that [the
prosecutor] intentionally struck the four people that he struck because of the
fact that they were males ¼.”
Mickle then pursued his
objection further, contending that there was nothing about the appearances of
the four struck jurors which supported the prosecutor's stated reasons for
taking the strikes. Confirming its
prior ruling, the trial court responded:
The
court notes that at times jurors are selected based upon merely hunches and
that [the prosecutor] has indicated that as strictly a hunch he noticed that
certain persons looked wrong to him, not based on gender but looked—but based
upon their facial expressions and furthermore based upon the fact that they did
not have eye contact with him; and furthermore [the prosecutor] has explained
that the last juror was actually selected based on an actual eenie-meenie-miine
mo process and that therefore that was between a lady and a man and just so
happened that the man ended up being the person eliminated.
Application of the Batson
principles involves a three-step process.
First, the defendant must make a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of gender. See Batson, 476 U.S. at
96-97. Second, if the requisite showing
has been made, the burden shifts to the prosecutor to articulate a
gender-neutral explanation for striking the jurors in question. See id. at 97-98. Third, the trial court must determine
whether the defendant has carried his or her burden of proving purposeful
discrimination. Id. at
98.
However, where the
prosecutor initially defends the use of the peremptory strikes without any
prompting or inquiry from the trial court, the first Batson step
is eliminated. Hernandez v. New
York, 500 U.S. 352, 359 (1991).
Therefore, in this case, we are concerned with the second and third
steps of the Batson methodology.
Next, we address our
standard of review. The parties
correctly agree that the third step of the Batson
analysis—whether the state's strikes constituted purposeful
discrimination—presents a question of fact.
See Hernandez, 500 U.S. at 364; see also State
v. Davidson, 166 Wis.2d 35, 41-42, 479 N.W.2d 181, 183-84 (Ct. App.
1991). However, Mickle contends that
the second step—assessing whether the prosecutor's explanation for the strikes
represents a gender-neutral basis—is a question of law. The State contends that the issue is one of
fact governed by the clearly erroneous standard of review.
The State correctly
notes that State v. Lopez, 173 Wis.2d 724, 729, 496 N.W.2d 617,
619 (Ct. App. 1992), states that the clearly erroneous standard applies to each
of the Batson steps.
Nonetheless, we agree with Mickle on this dispute. We do so for three reasons. First, we note that the Lopez
court never reached the second step of the Batson analysis
because the court concluded that the defendant had not satisfied his burden on
the first step. See Lopez,
173 Wis.2d at 731, 496 N.W.2d at 620.
Second, it does not appear from the context of the Lopez
decision that the standard of review was in dispute. Third, and most importantly, when stating that the clearly
erroneous standard of review applied to all the Batson factors,
the Lopez court relied on language of Hernandez
which pertained to the third step of the Batson analysis, not
the second step. Lopez,
173 Wis.2d at 729, 496 N.W.2d at 619.
For these reasons, we construe the Lopez decision, insofar
as it pertains to the second step of the Batson analysis, as
dicta.
We agree with Mickle
that the question posed by the second Batson step is one of
law. We base this conclusion on the
following language from Hernandez: “In evaluating the [gender] neutrality of an attorney's
explanation, a court must determine whether, assuming the proffered reasons for
the peremptory challenges are true, the challenges violate the Equal Protection
Clause as a matter of law.” Hernandez,
500 U.S. at 359 (emphasis added).
Moreover, when applying this second Batson step, the trial
court does not assess the credibility of the prosecutor. “A neutral explanation ¼
means an explanation based on something other than the [sex] of the juror. At this step of the inquiry, the issue is
the facial validity of the prosecutor's explanation.” Hernandez, 500 U.S. at 360
(emphasis added).
Rather, the credibility
assessment of the prosecutor's gender-neutral explanation is left for the third
step—assessing whether the gender-neutral basis for the exercise of the
peremptory challenges shows purposeful discrimination. As we have already noted, the parties
correctly agree that this involves a finding of fact by the trial court. See id. at 364.
Our conclusion that the
second Batson step presents a question of law is in keeping with
well-established Wisconsin law which holds that the application of a given set
of facts to a constitutional principle presents a question of law for
independent appellate review. “[T]his
court may independently review the facts ¼ to determine whether any constitutional principles have
been offended.” State v. Clappes,
136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987).
We now assess the second
Batson step—whether the prosecutor's explanation constituted, on
its face and taking it as true, a gender-neutral explanation for the peremptory
strikes—as a question of law. We will
then move to the third step to determine whether the explanation nonetheless
constitutes purposeful discrimination.[2]
Mickle contends that the
prosecutor's reason for striking the four male jurors was not gender neutral
because it “reflects the stereotype that men are more violent than women, and
men are more likely than women to be aggressor in violence against women and
children.” Strikes premised on such
stereotypes are improper. “We shall not
accept as a defense to gender-based peremptory challenges ‘the very stereotype
the law condemns.’” J.E.B.,
511 U.S. at ___, 114 S. Ct. at 1426 (quoting Powers v. Ohio, 499
U.S. 400, 410 (1991)).
However, we do not read
the prosecutor's explanation as excluding women per se as persons capable of
violence. Rather, the prosecutor
eye-balled the jurors in this case and picked up certain vibes or
sensations which, while difficult to verbalize, prompted his jury selection
decisions. The prosecutor said, “I
could not see any of that in any of the women's eyes but I saw it in the four
men that I selected.” This explanation
portends that had the prosecutor picked up similar sensations from female
jurors, he would have struck such jurors.
Thus, taking the prosecutor's reasons as true, they represent a
gender-neutral statement for the strikes.
We therefore move to the
third Batson step—whether the prosecutor's gender-neutral
explanation nonetheless represents purposeful discrimination. As we have noted, the parties properly agree
that this presented a finding of fact for the trial court which we review under
the clearly erroneous standard of review.
In conducting this
reivew, we properly bear in mind the words of Hernandez:
There will seldom be much evidence
bearing on [this] 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.
Hernandez, 500
U.S. at 365 (quoted source omitted).
Mickle contends that the
prosecutor gave only vague, confusing and contradictory explanations for the
peremptory challenges. We
disagree. While the prosecutor's
statement may not have been artfully stated, the message was nonetheless
conveyed. We do not see this
explanation as “implausible or fantastic” such that we can label it a
pretext. See Purkett v.
Elem, 514 U.S. ___, ___, 115 S. Ct. 1769, 1771 (1995).
Mickle also faults the
trial court for not walking through the Batson methodology step
by step. As such, Mickle concludes that
the court did not understand what Batson requires. We note, however, that while Mickle's
counsel properly raised a Batson objection, neither did he lay
out the Batson methodology for the benefit of the trial
court. Nor did Mickle's counsel ever complain
that the court had not fully performed a Batson analysis.
Moreover, although the
trial court's ruling was not elaborate, we conclude that the court's remarks
satisfied the Batson inquiry.
The court accepted the prosecutor's explanation for the strikes, a
statement which we construe as the court's acceptance of the prosecutor's
credibility. In addition, the court
explained that the reasons for the strikes were based not on the gender of the
jurors but on the perceptions and nuances which the prosecutor sensed during
the jury selection process. We do not
see Batson as requiring more.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Our research has not indicated whether the trial court must nonetheless move to the third Baston step if the prosecutor fails to provide a gender-neutral explanation for the strikes. Regardless, it would seem that the defendant has carried the burden on the third step as a matter of law if the prosecutor's explanation fails the second step.