State v. Gregory

VERGERONT, J.

¶ 16. (dissenting). I conclude that the trial court erred in its application of the Batson analysis. I do not agree with the majority that defense counsel waived the right to object to the prosecutor's proffered reasons for using a peremptory strike to remove Dondre Bell by not requesting an adjournment, nor do I agree that an evidentiary hearing is not required. Therefore, I would remand for an evidentiary hearing.

¶ 17. During voir dire, the prosecutor asked the potential jurors whether any had used a controlled substance such as marijuana, cocaine, or heroin. Seven answered they had used marijuana, ranging from twenty years ago to two years ago, and all seven said there was nothing about that fact that would make them unable to be a fair juror. The prosecutor then asked whether the family members of any potential jurors had used a controlled substance. Bell answered that his uncle had used cocaine approximately seven years ago; another potential juror answered that his brother used cocaine fourteen or fifteen years ago; and four answered that relatives had used marijuana between ten and twenty years ago. Five of these six persons, including Bell, said there was nothing about this that would make them unable to be a fair juror; *77one said she did not know if she could be fair and was excused for cause.

¶ 18. After asking whether any potential juror had been arrested for any reason (one had, not Bell), the prosecutor asked whether a close family member had been arrested for any type of criminal offense. Four potential jurors, not including Bell, answered in the affirmative. When the prosecutor asked whether the police had come to the residence of any other potential juror for "any type of complaint or to make an arrest or what have you?" Bell answered: "They came to our office before to check out they had a burglary,"1 and he said he was satisfied with the way the police handled the complaint. Seven other potential jurors related visits to their homes by police officers for various reasons — noise complaints, a domestic dispute, vandalism to a juror's home, and burglary or theft of a juror's residence or possessions. Six of these seven potential jurors were satisfied with the police response; one was not but apparently indicated no to the question of whether anything about that incident would lead her to be unable to be fair.

¶ 19. Defense counsel began by asking the potential jurors if any lived near 1604 Wisconsin in Beloit. Bell answered yes and gave his address as "1200."2 In response to a follow-up question, Bell said that nothing *78about that fact would impact on his ability to be fair and impartial. Another potential juror explained that his family owned the property at 1604 Wisconsin Avenue, but sold it in 1993, and he had not been there since 1992, and that would not make it difficult for him to be fair and impartial.

¶ 20. After defense counsel completed his questions and the attorneys made their peremptory strikes, defense counsel made a motion that was heard in chambers. This is the record of that hearing:

[DEFENSE COUNSEL]: Your Honor, I believe that my client is entitled to a jury of his peers. There was one black person in the jury panel. [The prosecutor] struck that person. Under Batson, [the prosecutor] has to have a nondiscriminatory reason for having struck him, and I would request that he show cause as to why he did so.
THE COURT: Well, as I recall the juror's answers he said that the police had been to the premises on one occasion and he felt he was treated fairly and then he also responded that he lives on Wisconsin Avenue at an address not far from the premises that are the premises described in the information in this case. What's your reason for striking him, Mr. District Attorney?
[THE PROSECUTOR]: Your Honor, the court presided over the trial yesterday involving State versus Nancy Lamon where the State also struck Mr. Bell and Miss Dabson Bollendorf provided various reasons why Mr. Bell was struck by the State. And I would just reiterate those reasons as she relayed them to me prior to the jury selection. First of all, a record check of 1604 Wisconsin indicated that there had been numerous — strike that. A record check of Mr. Bell's residence indicated that there had been *79numerous police contacts at that residence. Clearly I believe Mr. Bell was not being truthful when he indicated that there was only one police contact at the residence and that was for a complaint of burglary. Miss Dabson Bollendorf also informed me that among the police contacts at Mr. Bell's residence included a complaint of cocaine dealing. And that is consistent with Mr. Bell's statement that his uncle had been arrested for cocaine, some type of cocaine offense. And given the fact that Mr. Bell's — given Mr. Bell's last name I have very strong reason to believe that the uncle that Mr. Bell referred to was Christopher Bell which was — who was arrested by the federal government in one of the largest cocaine dealing rings in Rock County. Given that, the fact that he does live close to the defendant's residence and as I indicated my belief that he was not being truthful in response to my questions regarding police contacts at the residence and prior arrests and convictions of family relatives, I believe I had more than an ample non-racial basis to strike Mr. Bell.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: Your Honor, I can't refute what [the prosecutor] is saying. A lot of what he's saying is beyond the record. I wasn't here yesterday. I have no idea what happened during the trial. I guess—
THE COURT: Well, that's the problem I have, [the prosecutor]. I have to do it on the record you make.
[THE PROSECUTOR]: And I am making the record based upon the information that Miss Dab-son Bollendorf informed me and as an officer of the court I believe I certainly can rely on her statements to me as to why she struck Mr. Bell and rely on that *80information as being reliable in making my determination as to whether or not to strike a juror.
THE COURT: And he did testify today that there had been an arrest made for cocaine violation at the premises when he was there, did he not?
[THE PROSECUTOR]: I believe that he testified that his uncle had been arrested for cocaine.
[DEFENSE COUNSEL]: I had not personally—
THE COURT: Not he but this had been an arrest made at the premises of his uncle. Well, I think that satisfies the law as it now exists, [defense counsel]. So I will deny your motion. You have exception. And I can give you no more.
[DEFENSE COUNSEL]: Thank you.
THE COURT: Okay.

¶ 21. Although the trial court did not rule that „ Gregory had made a prima facie showing that the State acted with discriminatory intent, it appears the court concluded Gregory had done so because it proceeded to the second step and asked the prosecutor to explain his peremptory strike. The State does not argue on appeal that we may affirm on the alternative ground that Gregory did not make a prima facie showing, and I take this to be a recognition that the record of the voir dire supports such a showing. Moreover, I conclude that the relevant circumstances as revealed on the record of the voir dire do raise an inference of discrimination, thus satisfying the test for a prima facie showing. State v. Walker, 154 Wis. 2d 158, 172-73, 453 N.W.2d 127 (1990). Although, as the majority points out, the striking of the only African-American juror does not automatically constitute a prima facie showing, id. at 174 n.7, that fact, together with the fact that none of *81Bell's answers made him a suitable candidate for exclusion or differentiated him in obvious ways from white jurors who were not struck does constitute a prima facie showing.

¶ 22. Considering next the trial court's ruling on the second step — whether the State met its burden to come forward with a race-neutral reason for the strike — it is evident that the trial court determined the prosecutor had met this burden. The difficulty here, however, is that what the trial court apparently considered as the race-neutral reason — that there had been an arrest of Bell's uncle for cocaine at his uncle's premises — was not what the prosecutor stated as his reasons and also was an incorrect statement of Bell's answer on voir dire. The prosecutor's stated reasons were based in large part on information he had from sources other than the voir dire, which led him to believe Bell was not being truthful and that his family members were more involved in cocaine than Bell had revealed. It appears the trial court may have thought it could not consider reasons that were not part of the record and therefore focused on what the court recalled as one of Bell's answers on voir dire — that "there had been an arrest for cocaine at the premises when he was there." However, this was not a correct statement of Bell's response on voir dire, and the prosecutor's correction of this statement also was not correct — the prosecutor's question to which Bell answered, "Uncle. Cocaine," was whether any family members had used a controlled substance. Bell did not respond, as did other potential jurors, when asked if close family members had been arrested, and he said nothing about the premises of his uncle.

¶ 23. We defer to the trial court's determination at each of the three Batson steps, reversing only if the *82determination is clearly erroneous. State v. King, 215 Wis. 2d 295, 301, 572 N.W.2d 530 (Ct. App. 1997). Both because the trial court did not rule on the reasons the prosecutor gave and because it attributed to Bell a statement he did not make in voir dire, I cannot affirm the trial court's ruling at the second step.

¶ 24. Turning to the third step, it appears the trial court did not distinguish between the second and third steps of the Batson analysis. Rather, it appears that, having determined the State had met its burden on the second step, the court immediately denied the motion, implicitly deciding Gregory had not met his burden of establishing purposeful discrimination — for example, by showing that the prosecutor's explanation was a pretext. See Walker, 154 Wis. 2d at 176 n.11. However, the third step in the Batson analysis is not satisfied by a conclusory statement that the prosecutor's explanation is race-neutral. Jordan v. Lefevre, 206 F.3d 196, 200 (2nd Cir. 2000). At the third step, the trial court has the duty to determine if the defendant has established purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 98 (1986). The duty of assessing the credibility of the prosecutor's race-neutral reasons embodies the "decisive question" in the Batson analysis, Hernandez v. New York, 500 U.S. 352, 365 (1991), and requires the trial court to consider all the facts and circumstances. Jordan, 206 F.3d at 200.

¶ 25. In this case the prosecutor's explanation for the challenged strike was based on information about Bell beyond that produced in voir dire. I conclude the prosecutor may rely on information that is not produced in voir dire, and, when that occurs, the trial court should decide at the second step whether that explanation is race-neutral. If the trial court decides that it is, I conclude that at the third step the defendant is entitled *83to challenge that explanation as a pretext, and must have the opportunity to explore the information that the prosecutor has provided as the basis for the strike. The rationale for applying the deferential standard to trial court rulings on Batson challenges is that the determination of discriminatory intent is largely formed by the trial court's perceptions at voir dire. State v. Lopez, 173 Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992). When the prosecutor states that he or she is relying on police reports, arrest or conviction records, or other information not produced by responses in voir dire, I do not see how the trial court can fulfill its duty at the third step to assess the credibility of that prosecutor without evaluating the information on which he or she is relying. Because the trial court did not engage in the analysis required at the third step, I cannot agree we should affirm the determination that Gregory did not establish purposeful discrimination.

¶ 26. I also do not agree with the majority that affirmance is appropriate because defense counsel did not request an adjournment in order to obtain the additional information that the prosecutor stated was the basis for the strike. Defense counsel did, immediately after hearing the prosecutor's explanation, state that it was based on matters not of record. Defense counsel may have intended to ask for an adjournment when the trial court interrupted to say to the prosecutor "I have to do it on the record you make." When the trial court then focused on what it believed Bell said in voir dire, defense counsel's response was again interrupted by the court in a manner conveying the court did not wish further argument. Moreover, the court did not separately consider the third step in the Batson analysis, which is the point at which a request for an adjourn*84ment to obtain and review the "outside" information would be appropriate.

¶ 27. When a trial court has not engaged in the required analysis in response to a Batson challenge and the record does not permit review by this court as a matter of law, the proper remedy is a remand to allow that to occur. See, e.g., Jordan, 206 F.3d at 201—02; State v. Donaghy, 769 A.2d 10 (Vt. 2000). In my view, at the postconviction hearing the trial court adequately addressed the prosecutor's stated reasons for the strike (that is, the information he was relying on that was not produced at voir dire) and determined they were race-neutral, and I conclude that determination is not clearly erroneous. Therefore, there is no need for a remand to address the second step.

¶ 28. However, I do not agree with the majority that the offer of proof made at the postconviction hearing shows no evidence relevant to the third step. I do agree that the focus in proving that the reasons given by the prosecutor are pretextual is on what the prosecutor knew about the potential juror when he or she made the strike; therefore, the accuracy of what the prosecutor knew is not necessarily relevant. Because I am writing in dissent, I do not analyze in detail what evidence Gregory would be allowed to present at an evidentiary hearing. However, I am persuaded that at least some of the material submitted by way of offer of proof is relevant to the prosecutor's intent.

¶ 29. For example, the reports of visits by law enforcement personnel to 1216 Wisconsin Avenue, upon which the prosecutor apparently relied,3 do not *85indicate Dondre Bell lived at the address when the visits occurred, was involved in any of the incidents, or knew about them. Nonetheless, the prosecutor, according to his statement to the trial court, assumed Bell was not being truthful because he did not disclose more contact with the police by family members. If the prosecutor had no information indicating Bell lived at 1216 Wisconsin Avenue at the time of the police visits or knew of those visits, the prosecutor's statement to the court that Bell was not being truthful might simply be based on an unfounded assumption that Bell knew of the incidents, but it could also be evidence of pretext.

¶ 30. Were I writing for the majority, I would remand to allow the trial court to conduct a hearing at which Gregory would have the opportunity to establish that the prosecutor's stated reasons were a pretext for purposeful discrimination based on race and the trial court could then engage in the analysis required at the third Batson step. If the court determined that there were no purposeful discrimination based on race, it would affirm Gregory's conviction. If it determined that there were purposeful discrimination, the required remedy would be a reversal of the conviction and a new trial. King, 215 Wis. 2d at 309.

Since the prosecutor asked "has anyone ever had the police come to their residence for any type of complaint or to make an arrest or what have you?" we are uncertain whether Bell answered "office" or whether this is an error in transcription.

The transcript of the voir dire states "1200," but it appears from other documents on the record that Dondre Bell lived at 1216 Wisconsin Avenue on the date of the voir dire, April 16, 1999.

The police visits occurred during 1996-98. The reasons on the report for the visits are for things such as service of process and investigation of a claim by a household member of burglary, theft or neighbor dispute. The only reference to drugs is on *85January 11,1996, when a resident at that address reported that certain items were missing and the responding officer makes this comment: "Bell believes husband sold property for drugs ...."