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Jury Selection – Batson; Privileged (Mental Health) Records – In Camera Review; Evidence – Relevance; Expert Witness

State v. Britney M. Langlois, 2011AP166-CR, District 4/1, 3/6/12

court of appeals decision (not recommended for publication); for Langlois: Philip J. Brehm; case activity

The court  of appeals upholds a trial court finding that the prosecutor’s explanation for striking an African-American juror (recent conviction for disorderly conduct) was non-discriminatory:

¶33      After reviewing the record, we are satisfied that the trial court properly applied the Batson test.  Here, the trial court believed the prosecutor’s explanations for striking the African-American juror.  The trial court reasoned: “I’ll allow the strike.  The fact of a prior one or more criminal convictions I think is a relevant factor for the prosecution.  I don’t know that the [S]tate’s required to go into any further for the reasons [the prosecutor] mentioned.”  This finding, given the factual circumstances precipitating the strike, is not clearly erroneous.  See Lamon, 262 Wis. 2d 747, ¶¶2, 43-45; Jenkins, 303 Wis. 2d 157, ¶30.  We are, furthermore, not convinced that the State’s decision to strike this particular juror was pretextual, as Langlois argues, because he did not commit a “serious” crime.  As the State argued, and the trial court implicitly acknowledged, the issue was not only the conviction, but also its recency.  Furthermore, even though, as Langlois correctly notes, many of the jurors who were not stricken had OWI violations, she has not shown that any of them had more than a single OWI violation; and as the State argued and the trial court acknowledged, the stricken juror had an OWI and another criminal conviction.  Therefore, we conclude that the trial court properly applied the three-part Batson test.

Lamon, it should be noted, unsuccessfully sought habeas relief: Lamon v. Boatwright, 467 F.3d 1097 (7th Cir.2006). As the 7th Circuit noted there, at 1101, “Batson and its progeny direct trial judges to assess the honesty — not the accuracy — of a proffered race-neutral explanation.” Keep in mind that, determination of “honesty” being paramount, “comparative data” becomes significant. E.g., Henderson v. Briley, 354 F.3d 907, 910 (7th Cir. 2004) (“Indeed, in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), the Supreme Court provided support for our approach when it explicitly considered comparative data showing similarities between rejected black jurors and empaneled white jurors in determining the merits of a Batson claim, id. at 343, 123 S.Ct. 1029. [W]here the question arises at the trial level whether comparative evidence actually proffered by a defendant should be admitted as relevant, the answer remains yes.”); Boyd v. Newland, 467 F. 3d 1139 (9th Cir 2006) (“‘Comparative juror analysis’ refers, in this context, to an examination of a prosecutor’s questions to prospective jurors and the jurors’ responses, to see whether the prosecutor treated otherwise similar jurors differently because of their membership in a particular group. (C)omparative juror analysis is an important tool that courts should utilize in assessing Batson claims.”). Here, the court of appeals employed this “important tool,” even if without labeling it “comparative juror analysis.”

Langlois did not make the showing necessary to trigger in camera review of State witness Preston’s mental health records:

¶37      We disagree.  As the trial court succinctly explained, “we need a lot more than ‘someone is taking medications and once in a while doesn’t remember things,’ something more specific, before we even look at the … records.” (internal quotation marks and some punctuation added); see also id., ¶¶34-35.  Langlois does not articulate how review of Preston’s mental health records corresponds to her defense theory beyond stating that the jury should not have believed Preston because her medications cause her to misremember from time to time.  Moreover, as the State points out, Langlois’ attorney elicited on Preston’s cross-examination the very information that Langlois claims the jury needed to know ….

State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, discussed and applied.

On trial for first-degree intentional homicide, in the course of testifying on direct that someone else shot the victim then gave her the gun to dispose of, Langlois said the gun felt “awkward” in her hand. Over objection, the prosecutor was permitted to cross-examine her about her past experience firing a gun; this line of examination is upheld on appeal:

¶45      We disagree with Langlois; the trial court did not err in allowing the district attorney to question Langlois about whether she previously shot a gun after she strongly implied on direct examination that she was unfamiliar with guns.  Given the context of Langlois’ testimony on direct examination, the questioning allowed by the trial court was reasonable.  See, e.g., Hammer, 236 Wis. 2d 686, ¶21.  The trial court limited the testimony elicited to allow the State to impeach Langlois’ implication that she was unfamiliar with guns.  It did not allow any further, more prejudicial, testimony to come out; for example, there was no testimony that Langlois had previously shot another person. Therefore, we do not agree with Langlois’ contention that the only permissible inference one could derive from this testimony was that she was a violent person.  Individuals shoot guns for a variety of reasons—some of them recreational.  The prosecutor’s point in this particular case was that Langlois was in fact personally familiar with the act of firing a handgun.

Doctrine of “curative admissibility,” State v. Dunlap, 2002 WI 19, ¶32, 250 Wis. 2d 466, 640 N.W.2d 112 (otherwise inadmissible evidence may become admissible of required to cure unfair prejudice), deemed inapplicable, ¶46.

Qualifying an expert in the jury’s presence is permissible, Collier v. State, 30 Wis. 2d 101, 106-07, 140 N.W.2d 252 (1966), deemed controlling, ¶54 and n. 7.

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