State v. Gregory

2001 WI App 107, 630 N.W.2d 711, 244 Wis. 2d 65, 2001 Wisc. App. LEXIS 359
CourtCourt of Appeals of Wisconsin
DecidedApril 5, 2001
Docket00-0961-CR
StatusPublished
Cited by5 cases

This text of 2001 WI App 107 (State v. Gregory) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gregory, 2001 WI App 107, 630 N.W.2d 711, 244 Wis. 2d 65, 2001 Wisc. App. LEXIS 359 (Wis. Ct. App. 2001).

Opinions

ROGGENSACK, J.

¶ 1. Because the circuit court's finding that Calvin Gregory failed to prove the prosecutor's use of a peremptory strike to remove a juror was an act of purposeful racial discrimination is not clearly erroneous, we affirm the judgment.

BACKGROUND

¶ 2. Gregory was charged with possession of heroin with intent to deliver, within 1,000 feet of a school, as a repeater; the operation of a drug house, as a repeater; possession of cocaine, as a repeater; and felony bail jumping, as a repeater. After the jury was selected, but before its members were sworn, Gregory, who is African-American, challenged the prosecutor's use of a peremptory strike to remove the sole African-American juror, Dondre Eugene Bell. The circuit court immediately held a hearing on Gregory's challenge. Counsel for Gregory accused the prosecutor of using a peremptory challenge to remove all African-Americans from the jury, and the State gave its reasons for the strike. Thereafter, the circuit court found that Gregory had not proved the State's removal of Bell was racially motivated.1 The jury was recalled and sworn.

[68]*68¶ 3. After a guilty verdict was returned to counts one and two and a not guilty verdict to count three, Gregory pled to bail jumping. Subsequent to sentencing, Gregory filed a notice of intent to pursue postconviction relief. One of his challenges, and the issue central to this appeal, is whether the circuit court erred in failing to grant his Batson2 challenge to the prosecutor's peremptory strike of the sole African-American juror. Gregory asked the court to schedule a postconviction evidentiary hearing so that he could cross-examine the prosecuting attorney and an assistant district attorney who also had used a peremptory strike to remove Bell in an earlier criminal case. The State argued that a Batson challenge must be decided solely upon the record developed in voir dire and on the responses given at the hearing held before the jury was sworn.

¶ 4. On hearing Gregory's postconviction motions, the circuit court agreed with the State and declined to hold a postconviction evidentiary hearing. Instead, it reviewed the record made during voir dire and the State's responses at the Batson hearing. It also allowed the parties to file written proffers of evidence showing what they would have sought to prove if an evidentiary hearing had been held.3 The circuit court reaffirmed its finding that Gregory had not made a successful Batson challenge, and this appeal followed.

[69]*69DISCUSSION

Standard of Review.

¶ 5. We review the circuit court's finding of whether the prosecutor had the discriminatory intent necessary to support a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), as a finding of historic fact, which we will not overturn unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369 (1991).

Batson Challenge.

¶ 6. It is a violation of a defendant's right to equal protection of the law for the State to use a peremptory challenge to remove a potential juror from the venire solely because of race. Batson, 476 U.S. at 84. A defendant's challenge to the State's use of peremptory strikes to deliberately remove jurors from the venire because of race was initially addressed by the United States Supreme Court in Swain v. Alabama, 380 U.S. 202 (1965), where the Court held that systematic exclusion violated African-American defendants' rights to equal protection of the law.4 Id. at 223. Batson expanded the holding of Swain because it concluded that an individual defendant is denied equal protection of the law when the State uses peremptory challenges to purposefully exclude potential jurors from the petit jury for that defendant solely because they are members of the same race as the defendant. Batson, 476 U.S. at 84.

[70]*70¶ 7. Batson established that in order to make a successful challenge to the composition of a petit jury, a defendant must prove "purposeful discrimination." Id. at 93. In so doing, a defendant may rely on direct and circumstantial evidence of invidious intent, including proof of disproportionate impact. Id. In meeting this burden, a defendant first must make a prima facie showing that the State acted with discriminatory intent. To do so, a defendant should establish that he is a member "of a cognizable racial group" and that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire. Id. at 96. In making his case, a defendant is entitled to rely on the fact that peremptory challenges can be used as a jury selection practice to discriminate based on race, by those who intend to do so. Id. Some courts have created a bright-line rule whereby a defendant can make a prima facie case simply by showing that the prosecutor has used peremptory strikes to remove all members of the defendant's race from the jury, even if only one strike is required.5 Wisconsin has declined to adopt such a bright-line rule. State v. Walker, 154 Wis. 2d 158, 174 n.7, 453 N.W.2d 127, 133 n.7 (1990). "Finally, the defendant must show that these facts and any 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." Batson, 476 U.S. at 96. This combination of factors raiseg the necessary inference of "purposeful discrimination." Id.

¶ 8. Once a defendant has made a prima facie case, then the burden shifts to the State to refute the [71]*71inference of discriminatory intent. Id. at 97. The State's rebuttal does not need to be sufficient to justify a challenge for cause. Id. However, a prosecutor may not rebut a defendant's prima facie case simply by stating that he thought that because the juror and the defendant were of the same race, the juror would be sympathetic to the defendant's position. Id. Furthermore, a prosecutor may not rebut a defendant's prima facie case simply by denying that he had a discriminatory motive, but rather, the prosecutor "must articulate a neutral explanation related to the particular case to be tried." Id. at 98. If the State does so, then the circuit court has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established. Id. As part of this third step, a defendant may show that the reasons proffered by the State are pretexts for racial discrimination. Walker, 154 Wis. 2d at 176 n.11, 453 N.W.2d at 134 n.11.

¶ 9. At the hearing outside of the presence of the jury, and without ruling whether Gregory had made a prima facie case under Batson of purposeful discrimination, the court asked the prosecutor to explain why he struck Bell.6

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Related

State v. Lamon
2003 WI 78 (Wisconsin Supreme Court, 2003)
State v. Ross
2003 WI App 27 (Court of Appeals of Wisconsin, 2003)
State v. Gregory
2001 WI App 107 (Court of Appeals of Wisconsin, 2001)

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Bluebook (online)
2001 WI App 107, 630 N.W.2d 711, 244 Wis. 2d 65, 2001 Wisc. App. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gregory-wisctapp-2001.