On Point

City of West Allis v. Robert C. Braun, 2012AP1199, District 1, 4/9/13; court of appeals decision (1-judge, ineligible for publication); case activity

The trial court erroneously instructed the jury in a municipal forfeiture case that the defendant was presumed innocent, and the City is therefore entitled to a new trial:

¶12      Here, the circuit court seemed to combine both instructions [Wis. J.I.-Criminal 140 and 140A] by informing the jury that Braun was presumed innocent and that the City had the burden of proving, by clear and convincing evidence, that Braun’s actions constituted disorderly conduct.  However, because Braun’s trial concerned a civil forfeiture, he was not entitled to a presumption of innocence, and thus, the jury was incorrectly instructed.  See Village of Sister Bay v. Hockers, 106 Wis. 2d 474, 480, 317 N.W.2d 505 (Ct. App. 1982).  Because we assume that the jury follows instructions, see Sommers v. Friedman, 172 Wis. 2d 459, 468, 493 N.W.2d 393 (Ct. App. 1992), the jury presumed Braun was innocent, effectively imposing an extra burden of proof on the City.

The testimony of the police officer and Braun conflicted; “[b]ecause the jury considered the conflicting testimony with the presumption that Braun was innocent, we conclude that the outcome of Braun’s trial could have been different had the jury been given the proper instruction.” (¶13).

The “presumption of innocence” has been described as “an inaccurate, shorthand description of the right of the accused  to ‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.'” Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (cited source omitted). It is not evidence, “but instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt.” Id. While the standard of proof in this case is clear and convincing evidence (which is what the jury was told), like the State in a criminal case, the City has both the burden of production and the burden of persuasion. To the extent that is all the “presumption of innocence” means, it is not clear how mistakenly telling the jury about that presumption “effectively impos[ed] an extra burden of proof on the City” (¶12) that the City didn’t already have.

State v. Matthew A. Lonkoski, 2013 WI 30, affirming unpublished court of appeals decision; case activity

About 30 minutes into being questioned by police about the death of his daughter, Matthew Lonkoski said he wanted a lawyer. (¶12). Under Edwards v. Arizona, 451 U.S. 477 (1981), the invocation of the right to counsel would mean the police had to cease interrogation unless Lonkoski reinitiated the interview. But the Edwards rule applies only if the suspect is in custody. The court of appeals assumed Lonkoski was in custody, but held that he had reinitiated the conversation. (¶19). The supreme court now holds that Lonkoski was not in custody; therefore, the Edwards rule doesn’t apply, and his subsequent statements should not be suppressed.

Lonkoski argued both that he was in “custody” or, alternatively, that custody was “imminent” when he asked for a lawyer, so Miranda (and Edwards) should apply. (¶25). Applying the standard test for custody–whether, under the totality of the circumstances, a reasonable person would not feel free to terminate the interview and leave (¶¶6, 27)–the court first concludes Lonkoski was not in custody, as summarized here:

¶7   Lonkoski came to the sheriff’s department without being asked and voluntarily submitted to questioning by law enforcement officers.  Although he was questioned in a small room within a jail by two officers with the door closed, the circuit court found that it was a typical interrogation setting locked to ingress by individuals but not for egress; he was never restrained in any way; and the door was opened more than once by people entering or exiting.  In fact, on one occasion when the officers left the room, one of the officers asked Lonkoski whether he preferred the door to the interrogation room to be open or shut.  Furthermore, Lonkoski was told that he was not under arrest and that the officers were not accusing him.  In the totality of the circumstances, a reasonable person in Lonkoski’s position at the time he stated he wanted an attorney would believe that he or she was “free to terminate the interview and leave the scene.”  ….

The court then rejects Lonkoski’s argument that because he was about to be placed in custody and interrogated further, custodial interrogation was “imminent” and his assertion of the right to counsel should be given effect. In making this argument Lonkoski relied on State v. Hambly, 2008 WI 10, ¶¶3, 24, 307 Wis. 2d 98, 745 N.W.2d 48 (see our post here). That case held that a suspect who was in custody but not yet being interrogated could effectively assert his right to have counsel present if interrogation was imminent or impending. (¶36). The supreme court holds Hambly does not apply here:

¶38  Lonkoski believes that “imminent interrogation” and “imminent custody” are equally coercive and that this court should extend its holding in Hambly to the inverse situation where a suspect is being interrogated but is not yet in custody.  This argument ignores the differences in the circumstances in each situation.  In Hambly, the suspect was enduring a much more coercive environment than Lonkoski, who was talking to law enforcement officers while he was not yet in custody.  Before a suspect is in custody, the coerciveness is substantially lessened because a reasonable person in the suspect’s position would believe that he or she could end the conversation and leave at any time.  See Martin, 343 Wis. 2d 278, ¶33 (holding that custody exists when a reasonable person would believe that he could not end the conversation and leave).

¶39 Another reason the “imminent custody” rule that Lonkoski proposes is unnecessary is that the current definition of “custody” encompasses both formal arrest and situations in which a reasonable person would consider himself or herself in custody.  See, e.g., Stansbury v. California, 511 U.S. at 322.  By contemplating both, the current test prevents law enforcement from gaming the system by placing a suspect in a custodial-like situation without formally arresting the person to avoid Miranda protections.  We therefore see no reason to adopt a new test to fit the facts of this case.

The court’s recitation of the custody test is unobjectionable, but its application is problematic. First, Lonkoski pointed out in his briefs (available here) that he was being questioned about a serious matter–the death of his child–and that the questioning got sharper and more accusatory, culminating in his realization the police suspected he caused the death. If the police convey to a person being questioned that they have evidence leading them to suspect the person committed a serious crime, the person would reasonably believe the police are not going to simply let the person leave when he wants to–and so other courts have held, as Lonkoski pointed out, e.g., U.S. v. Jacobs, 431 F.3d 99, 105-06 (3rd Cir. 2005), which in turn relies on Stansbury, 511 U.S. at 325. The court, however, unjustifiably treats this as an argument based on the subjective beliefs of the suspect and the officers, which are irrelevant to the objective custody test. (¶¶34-35).

Second, the court largely ignores the evolution of Lonkoski’s interrogation. Everyone agrees Lonkoski was not in custody at the start (¶29), but as it proceeded the questioning made the officers’ suspicions clearer and clearer, leading to Lonkoski’s demand for a lawyer and, within seconds, his arrest. In fact, shortly after saying he wanted a lawyer, it occurred to Lonkoski to ask: “Am I under arrest?” Reply: “You are now.” (¶12). That raises  a question: Since when was he in custody? The precise moment the officer uttered those words, probably; but could it have been a few moments before? A totality of the circumstances test means the line between non-custody and custody is not always bright, but the court’s analysis doesn’t address the changes over the course of the questioning, especially in the last few moments before the police told him he was now in custody.

Which brings us to the court’s distinguishing of Hambly based on differences in the “coercive environment.” (¶38). The court says Hambly’s situation was “much more” coercive because he was in custody and couldn’t walk away. But the “coercive environment” is not just being in custody; it is being subjected to custodial interrogation–questioning aimed to get an incriminating statement. While Hambly was in custody, he wasn’t being interrogated yet; Lonkoski, on the other hand, had been questioned for 30 minutes in increasingly accusatory fashion and, within moments of asking for a lawyer, placed under arrest–at which point he was just like Hambly. In short, Lonkoski was seconds away from the same situation Hambly was in, and was being interrogated to boot. Those two “coercive environments” look a lot closer than the court admits. 

In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity

In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use, cite to, or quote from a PSI in appellate briefs:

¶19  Pursuant to our superintending and administrative authority, we conclude that in a merit appeal, parties who are entitled “to have and keep a copy” of a PSI pursuant to Wis. Stat. § 972.15(4m) need not ask any court’s permission to reference a PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. Extreme caution should be undertaken when referencing sensitive information.[4]

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[4] A PSI should be quoted as sparingly as possible, and counsel must exercise sound discretion to avoid compromising sensitive information.  On occasion, appellate counsel may need guidance from the court of appeals.

The issue in this case arose after the lawyer for a defendant in a merit appeal raising a sentencing issue asked for, and received, permission from the court of appeals to cite the PSI in his brief. (¶4). The state asked, too, saying that was its practice since State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, which held that a defendant in a no-merit appeal is entitled to view the PSI, subject to the circuit court’s discretion to redact identifying or confidential information. (¶5). The reference to Parent apparently caused the court of appeals to conclude its earlier order was wrong, so it sealed the defendant’s brief and directed the parties to move the circuit court for permission to “access, discuss, cite to, or quote from the PSI,” saying that “Parent makes clear that the circuit court, and not this court, is the proper tribunal to preside over motions requesting access to and disclosure of the contents of PSI reports.” (¶6).

The supreme court now holds that because the lawyers for the defendant and the state in a merit appeal are entitled “to have and to keep a copy” of the PSI under Wis. Stat. § 972.15(4m), they likewise have the authority to use, cite to, and quote from the PSI in the appeal. (¶¶22-27). This conclusion is consistent with Parent because that case is concerned with access to the PSI, not use of it, and moreover is limited to the issue of access by the defendant in a no-merit appeal who, unlike counsel in a merit appeal, does not get to have and keep a copy under § 972.15. (¶¶29-34). Finally, the court of appeals read the confidentiality requirements in § 972.15(4) and (4m) to mean the parties must seek permission to use the PSI in a brief, but the supreme court rejects that construction:

¶39  We agree with the SPD and the State that the confidentiality requirement of Wis. Stat. § 972.15 requires compliance with Wis. Stat. § (Rule) 809.81(8) (“Every notice of appeal or other document that is filed in the court and that is required by law to be confidential shall refer to individuals only by their first name and the first initial of their last name.”).  See also Wis. Stat. § (Rule) 809.19(1)(g) and (2) (requiring reference to individuals by first name and last initial in appellate briefs when record is confidential).  Parties should be mindful that a PSI may also contain information that must be kept confidential for other reasons, for example medical information, see Wis. Stat. § 146.82 (“All patient health care records shall remain confidential”), information from child welfare and termination of parental rights (TPR) proceedings, see Wis. Stat. §§ 48.78, 48.396(2)(dr), and information from juvenile delinquency proceedings, see Wis. Stat.§§ 938.78, 938.396(2g)(dr).  These examples are by no means exhaustive regarding the treatment or forms of confidential information that may be contained in a PSI.  In addition, because of the sensitive nature of information contained in a PSI, counsel should be prudent when using any information from a PSI regardless of whether they are statutorily-required to so measure their actions.

This decision very helpfully affirms what has been standard practice for years, and avoids mandating a new procedure that would have been cumbersome and time consuming and could have allowed judges to limit the ability to cite to the parts of the record that supported claims of sentencing error. That said, there are a couple of points to note.

First, the court is concerned that PSIs can contain sensitive information and that there is a potential for widespread dissemination of information now that briefs are electronically filed; accordingly, it takes pains to urge lawyers to be “abundantly” and “extreme[ly]” cautious in citing sensitive information, to exercise “sound discretion,” and to quote the PSI “sparingly.” (¶¶3, 19 n.4, 43). And, citing the two known instances (one involving a judge, the other a prosecutor) when citation to the PSI was deemed to be over the line, the court says:

¶42  To be clear, our decision does not grant parties unfettered discretion to reference any and all portions of a PSI; the parties may reference information from a PSI only if it is relevant to an issue on appeal.  See State v. Comstock, 168 Wis. 2d 915, 923, 485 N.W.2d 354 (1992) (“[T]he dissent admits that it recites numerous facts drawn from the presentence investigation report.  We disapprove of this practice.”) (citation omitted); State v. McCallum, 208 Wis. 2d 463, 480 n.3, 561 N.W.2d 707 (1997) (“McCallum’s motion to strike references to the defendant’s presentence investigation report from the State’s brief is granted.” (citing Comstock, 168 Wis. 2d at 923-25)).

The court also suggests counsel who are unsure whether a brief’s use of information from the PSI complies with confidentiality rules can “ask the court of appeals for guidance” or file the brief under seal and let the court of appeals decide compliance. (It would be better to try seeking advice from a colleague who does appellate criminal defense before asking the court.) Also, opposing counsel can move to strike inappropriate references in a brief, as happened in McCallum. (¶43).

Finally, the dissent concludes that because § 972.15 says the PSI is confidential, it can’t be cited or quoted unless the information is already public–e.g., because the judge discussed it at sentencing. Reference to anything else would require permission from the judge (circuit or court of appeals, depending where the record is). (¶¶62-72). Both the majority (¶43 n.13) and dissent (¶67 n.6) note this approach is consistent with legislation proposed by the Judicial Council. Obviously, if the legislature amends § 972.15, it may well change the rules for referring to the PSI in appellate briefs and other filings.

State v. Muhammad Sarfraz, 2013 WI App 57, petition for review granted 9/17/13; case activity

The circuit court erroneously excluded evidence of prior sexual activity between Sarfraz and I.N., the complainant. She alleged Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and forcibly engaged in sexual intercourse with her. (¶¶2-3). Sarfraz’s defense was that he and I.N. had a romantic relationship before the alleged assault and the intercourse was consensual. (¶5).

Applying the three-part test for admissibility under Wis. Stat. § 972.11(2)(b)1., see State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990), and State v. Jackson, 216 Wis. 2d 646, 658-59, 575 N.W.2d 475 (1998), the circuit court concluded the evidence satisfied the first part of the test–that a reasonable person could reasonably infer from the evidence Sarfraz would present that the prior sexual conduct occurred. The court of appeals agrees with this conclusion. (¶23).

As to the second part of test–whether the evidence of the prior consensual sexual conduct is relevant to a material fact in the case–the circuit court concluded that because the evidence did not involve force, it was “not material to what happened here.” (¶25). This ruling was incorrect:

¶26      The trial court essentially held that for evidence of the past sexual conduct between Sarfraz and I.N. to be admissible, it must be of the same type and nature that is charged as a crime.  Neither the language of Wis. Stat. § 972.11(2)(b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case.  ….

¶27      Sarfraz established that evidence of prior sexual conduct was material to a fact at issue.  That I.N. may have masturbated Sarfraz on numerous occasions, both at Sarfraz’s apartment and at her own, is relevant to the issue of whether I.N. consented to sexual contact on May 15, 2010.  The full scope of their sexual relationship is relevant to whether it is believable that Sarfraz attempted to conceal his identity from someone who knew him so well in a physical sense.  No mask was recovered from either I.N.’s apartment, Sarfraz’s taxi, or any other location searched by police.  If the jury believed that Sarfraz was a frequent visitor and engaged in explicit sexual conduct with I.N. at her apartment, then the jury could reasonably infer that Sarfraz did not pretend to be I.N.’s landlord, wear a mask, or force his way into her apartment.  The jury could also reasonably infer that the testimony of Riffat and Uddin, both of whom stated that they caught Sarfraz and I.N. together in romantic situations, was credible.  Therefore, explicit evidence of Sarfraz’s and I.N.’s prior consensual contact is material to the question of whether the sexual contact alleged here was consensual.

Sarfraz also satisfies the third part of the test–the probative nature of the evidence outweighs any prejudice to the complainant–because evidence of prior sexual contact between himself and I.N.provides “the missing piece” of evidence that would allow the jury to question I.N.’s credibility:

¶30     …. The probative value of prior sexual activity evidence—namely, evidence that I.N. masturbated Sarfraz―outweighs any potential for prejudice to I.N.  A jury that believed Sarfraz could reasonably infer from the context of the entire relationship that I.N. consented to elevated sexual contact (intercourse) to regain Sarfraz’s favor after her attack.  The evidence the trial court barred supports each aspect of Sarfraz’s defense.  If the jury heard all of Sarfraz’s evidence of prior sexual contact between I.N. and himself, and believed the evidence, it could have reasonably concluded that:  (1) Sarfraz did not conceal his identity and force his way into I.N.’s apartment; (2) Sarfraz and I.N. had indeed discussed marriage; and (3) I.N. consented to, or perhaps even initiated, sexual intercourse with Sarfraz.  Under this set of facts, we conclude that evidence of prior sexual conduct was far more probative of the defense theories than prejudicial to I.N.

The trial court allowed Sarfraz to put in some evidence his prior relationship with I.N., including hugging, kissing, and lying in bed  together, though without reference to sexual activity. (¶¶7, 9, 12, 15, 34). To the dissent, the excluded evidence of sexual activity was essentially unnecessary to Sarfraz’s defense, as his theory for why I.N. would lie about the forcible assault was not based solely on the evidence of sexual activity and was supported by the evidence he was allowed to introduce. (¶¶35-37). And, the dissent concludes, even if the sexual activity evidence was marginally relevant, it was outweighed by its prejudice to I.N. (¶¶38-39).

State v. Andrew Alexander Jackson, Jr., 2013 WI App 66; case activity

The circuit court erred in suppressing marijuana found in the trunk of Jackson’s car because there was probable cause to search the trunk based on the discovery of marijuana residue, $1,961 in cash, and a digital scale in the passenger compartment of the car:

¶10      Like in [United States v.] Ross, [456 U.S. 798 (1982),] where the police were permitted to search the trunk because they had probable cause to believe that the defendant was selling drugs out of the trunk of his car, here, we conclude that the police were permitted to search the trunk because the evidence uncovered in the passenger compartment—the marijuana residue, the scale, and the large amount of cash in small denominations—gave them probable cause to believe that Jackson was selling drugs out of his car.[5]  As such, the police were permitted to search “‘every part of the vehicle and its contents,’” including the trunk, “‘that may conceal the object of the search,’” in this case, evidence of drug dealing.  See [Wyoming v.] Houghton, 526 U.S. [295,] 301 [(1999)] (citation and emphasis omitted).  Because police had probable cause to search the trunk based upon the evidence located in the passenger compartment, we reverse and remand to the circuit court.

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[5]  Jackson argues that the small amount of marijuana residue and the small size of the scale recovered from the center console did not suggest that he sold drugs, but rather, at most, merely suggested that he recreationally used marijuana.  In short, we find Jackson’s assertion that an individual who is only recreationally using marijuana and not selling it would need a digital scale in his or her car to be absurd.

The court sets out only half the standard for warrantless search of a car when it says the police may search if they have probable cause to believe the car contains contraband (¶8); the second part is whether the vehicle is readily mobile,  State v. Marquardt, 2001 WI App 219, ¶31, 247 Wis. 2d 765, 635 N.W.2d 188, and that was apparently not an issue here.

That quibble aside, one might ask why the police were searching the passenger compartment in the first place. The opinion notes only that the officer smelled “fresh marijuana coming from inside the car.” (¶8). The circuit court concluded the search of the passenger compartment was lawful, but suppressed the evidence discovered in the trunk because the officer’s testimony that he smelled fresh marijuana coming from the trunk was incredible. (¶¶5, 11). Indeed, the officer’s testimony earned a bit of derision from the circuit court, who remarked on “these super sniffer police officers that can smell marijuana through trunks, through bags, anyplace…” even though the judge (and others) can’t smell marijuana that is sitting in the courtroom (being offered as evidence, presumably). (¶5).

The court’s disbelief of the officer’s claims of olfactory prowess was limited to what the officer claimed he smelled in the trunk, and so the court suppressed only that evidence, which totaled 231 grams of pot. (¶¶4, 5). Maybe the court should have extended its skepticism to the officer’s claim he smelled marijuana coming from inside the car, given that the marijuana found in the passenger compartment weighed all of 0.02 grams, according to the state’s brief (at 3-4; available here). That argument is beside the point, though, because Jackson didn’t cross-appeal the circuit court’s decision not to suppress the evidence found in the passenger compartment. (¶5 n.3).

State v. Gene A. Echols, 2013 WI App 58; case activity

Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.

Erroneous ruling excluding complainant’s school disciplinary records

A fifteen-year-old student alleged that Echols, who worked as a school bus driver, assaulted her on the bus on the way to school one morning. Before trial, Echols sought to admit evidence the complainant had a long record of disciplinary problems at school and had been placed on a “behavioral contract” under which she would face expulsion for any subsequent altercations. According to Echols, the student had, a couple of weeks earlier, thrown a snowball at him while he was driving and was threatening to do so again on the morning of the alleged assault. Echols’s theory was that if the school received word that the student had thrown a snowball at him previously or that she was threatening to do it again, she might be expelled from school; to garner sympathy and avoid punishment for causing mischief on the bus, the student claimed that Echols had assaulted her.

The trial court refused to admit the evidence of the student’s disciplinary records, determining that they were (1) inadmissible “other acts” evidence because there was no link between the student’s alleged behavioral issues and a motive to fabricate the assault; (2) unfairly prejudicial because a victim such as the student should not be “subject to having [her] entire life’s history dredged up against [her]”; and (3) unlawfully obtained. Despite the ordinarily deferential review of trial court evidentiary rulings, the court of appeals reverses, rejecting all three rationales offered by the trial court for its ruling (¶¶18-30).

The court’s conclusion that the disciplinary records are admissible “other acts” evidence involves a straightforward analysis under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). First, the evidence is relevant to show the student knew she would very likely be expelled for throwing and/or threatening to throw a snowball, and that she was alleging wrongdoing by Echols to divert attention from her own misconduct. (¶¶18-19). Next, the probative value of the evidence outweighed any prejudice, and the trial court was wrong to analogize the student’s disciplinary history to a victim’s sexual history because the evidence refers to the student’s credibility and whether she had a motive to fabricate the assault. (¶20).

The novel issue here involves the trial court’s exclusion of the records because they were unlawfully obtained. It appears the school simply faxed the disciplinary records to defense counsel upon counsel’s request. (¶22). Apparently neither was aware of Wis. Stat. § 118.125(2)(f), which requires a subpoena for the records to be sent to the circuit court for an in camera review for relevance to witness credibility or competency. The court concludes there is no authority for construing the statute to require exclusion of the records if its procedure is not followed and, because there is no evidence counsel sought to disregard the confidential nature of the records, exclusion would be too harsh. Rather, “[t]he trial court could have, and should have, upon receipt of the documents, conducted the in camera inspection required by the statute, while requiring the parties to keep the documents confidential. Then, pursuant to the statute, the trial court should have determined which, if any, portions of the records were admissible for purposes of impeachment of the student.” (¶22). If you are litigating a case in which you are seeking introduction of school records, you should familiarize yourself with § 118.125(2)(f). Assuming this decision is indeed published, practitioners may be held to a higher standard in future cases.

Erroneous admission of Haseltine-type evidence

Admission of testimony from the school bus company’s safety director that Echols only stutters when he is lying constitutes reversible error. Though Echols put his character and credibility at issue and thus invited rebuttal testimony from the state, the trial court went too far by allowing testimony that when Echols was lying he would stutter, and that Echols did not stutter in normal conversation when he was not lying. (¶¶24-25). As in State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), where the testimony at issue was an implicit opinion that the victim was telling the truth, “the safety director’s testimony in the case before us is an improper opinion that Echols lies when he stutters.” (¶26). This evidence was not harmless because Echols does in fact stutter, and has done so since childhood, and this case depended heavily on whether the jury found the student or Echols more credible.

A note about the history of this decision. It was originally released on February 20, then withdrawn on March 27, and finally reissued on April 9. The reissued opinion makes a few revisions to reorganize or amplify the legal analysis, but the main alteration was to remove the references in the original opinion to the court’s exercise of its power of discretionary reversal due to the real controversy not being fully tried. Somewhat incongruously, the original opinion concluded both that the evidentiary errors were not harmless and that the real controversy was not tried.

State v. Karen Lynn Snow, 2012AP2323-CR, District 4, 4/4/13; court of appeals decision (1-judge, not eligible for publication); case activity

Applying the three-part, burden shifting test for Batson claims, see State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607, the court of appeals concludes the circuit court erred in rejecting Snow’s objection to the prosecutor’s peremptory strike of Whiteeagle, a prospective juror who was Native American.

The first Batson step requires the defendant to make a prima facie showing of purposeful discrimination. The court of appeals agreed with the circuit court that Snow made that showing: Snow and Whiteeagle are both Native American and Whiteeagle was the only Native American potential juror. Moreover, the prosecutor acknowledged in his explanation of his strike that he took race into account because he referred to “Ho‑Chunk traditional culture.” (¶11).

The next Batson step shifts the burden to the prosecutor to provide a neutral explanation for the peremptory strike. The court of appeals concludes the circuit court erred in concluding the prosecutor provided such an explanation:

¶17      This court has interpreted previous case law “to preclude striking a juror based on a prohibited characteristic, even if other non-prohibited characteristics were also used.” King, 215 Wis. 2d at 308. Here, the prosecutor linked his doubts as to Whiteeagle’s ability to fairly weigh testimony due to his belief that “family ties, especially in the Ho‑Chunk traditional culture, are extremely strong,” thereby demonstrating that the strike was based on a prohibited characteristic. As a matter of law, excluding a prospective juror from jury service because of race or membership in a cognizable class can never be neutral, regardless of the prosecutor’s good faith. See Guerra-Reyna, 201 Wis. 2d at 759.

The more neutral part of the state’s reason for striking Whiteeagle was that her father was “kind of” friends with two defense witnesses. (¶¶2-3). She said that wouldn’t affect her ability to be fair, but the prosecutor thought the “extremely strong” family ties of Ho-Chunk culture would cause her to give more credit to their testimony. (¶4).

Note that the state didn’t object to Snow’s new trial motion, though the circuit court denied that motion. (¶¶6-7). The state also moved for summary reversal in the court of appeals. (¶7 n.4). Perhaps those concessions reflect the cases on which the court of appeals relies: State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997) (prosecutor acknowledged striking two jurors because they were “older females”); State v. Guerra-Reyna, 201 Wis. 2d 751, 753-54, 549 N.W.2d 779 (Ct. App. 1996) (prosecutor struck prospective jurors based on their membership in a “cognizable class”–namely, they were of Mexican ethnicity); and State v. Jagodinsky, 209 Wis. 2d 577, 581, 563 N.W.2d 188 (Ct. App. 1997) (prosecutor referred to gender as one reason to strike every male from jury).

Because the circuit court erred in concluding that the prosecutor offered a race-neutral explanation for the peremptory strike of Whiteeagle, the court does not address the third Batson step—whether the defendant has proven purposeful discrimination—because the prosecutor’s failure to offer a race-neutral explanation leaves only Snow’s unrebutted prima facie claim of purposeful discrimination, Jagodinsky, 209 Wis. 2d at 585, so the only remedy is to reverse the conviction and remand for a new trial. (¶18).