State v. Lamon

2003 WI 78, 664 N.W.2d 607, 262 Wis. 2d 747, 2003 Wisc. LEXIS 448

• Court: Wisconsin Supreme Court
• Decided: July 2, 2003
• Docket: 00-3403-CR
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. Nancy R. Lamon (Lamon) seeks review of a court of appeals' decision that affirmed the circuit court's finding that the State's peremptory strike of a potential juror was not in violation of the test established under Batson v. Kentucky, 476 U.S. 79, 96-98 (1986).

¶ 2. We affirm the decision of the court of appeals. We give deference to the circuit court's decision based on the standard set forth in Hernandez, and hold that clearly erroneous is the correct standard of review in this case. Hernandez v. New York, 500 U.S. 352, 364 (1991). We hold that the decision of the circuit court was not clearly erroneous under Batson, because the State offered sufficient evidence for its race-neutral justification.

I. BACKGROUND

¶ 3. The facts are undisputed. Leeman Jones (Jones), an African-American, was driving home around 1:00 or 1:30 a.m. on May 31, 1998, when Nancy R. Lamon (Lamon) flagged him down. She expressed the need to be taken to a telephone and got into Jones' car. Jones began driving, but stopped the car upon Lamon's statement that her friend was in a car behind them. Jones stopped the car and the person in that car approached Jones' window and asked for Jones' wallet while Lamon threatened Jones with an object on his right side. Jones complied and his money was taken from his wallet. Lamon exited Jones' car and entered her friend's car.

¶ 4. On June 3, 1998, a complaint was filed in Rock County Circuit Court charging Lamon with violating Wis. Stat. § 943.32(1)(b) & (2)¹ (armed robbery by threat of force with article reasonably believed to be a dangerous weapon). The complaint also alleged La-mon was a repeater as defined in Wis. Stat. § 939.62(l)(c).

¶ 5. On June 30, 1998, Lamon entered a plea of not guilty. Lamon then entered a motion to dismiss, claiming lack of probable cause at the preliminary hearing. The circuit court denied the motion finding that there was sufficient evidence for Jones to have had a reasonable belief that he was threatened by a weapon.

¶ 6. On April 14, 1999, jury selection for Lamon's trial began. Twenty out of 35 possible jurors were called and seated in the jury box; one of which was Mr. Dondre Bell (Bell). Bell was the only African-American in the jury pool. The circuit court questioned the venire first. Bell did not respond affirmatively to any of these questions, although others did answer yes and were asked follow-up questions.

¶ 7. The court asked the potential jurors the following questions:

Is anyone related by blood or marriage to Lamon? (R. 60:7).

Is anyone otherwise acquainted with Lamon? (R. 60:7).

Is anyone related by blood or marriage, or otherwise acquainted with defense counsel or the Assistant District Attorney? (R. 60:8-9).

Does anyone have any possible financial interest, or other possible interest in the outcome of the trial? (R. 60:10).

Does anyone have some feeling of bias or prejudice for or against the State or the defendant, keeping in mind the charge of armed robbery? (R. 60:10).

Does anyone have a compelling reason why they should not be compelled to serve for possibly two days? (R. 60:10).

Does anyone believe that they could not be fair and impartial? (R. 60:10-11).

¶ 8. Assistant District Attorney Jodi Dabson Bol-lendorf (Bollendorf) then conducted a general voir dire of the venire. Bell did not respond affirmatively to any of these questions, but other potential jurors answered yes to some of the questions. Specifically, Bollendorf asked:

Is there any of you who has had contact with the Rock County District Attorney's Office in any capacity? As a victim, as a witness, as a defendant? Just to call up and ask a question or any capacity whatsoever? ... No one's had contact. (R. 60:11).

Is there any of you who has ever been a victim of a crime? (R. 60:11).

Is there anyone here who has a close friend or relative who has been the victim of a crime? (R. 60:15).

Are there other people besides those that have already raised their hands that are in that situation who have a close friend or relative who has been convicted? (R. 60:18).

¶ 9. Bollendorf then asked if anyone was acquainted with or knew of people involved in the incident.² Moreover, Bollendorf asked if anyone would have difficulty determining guilt or innocence based on the reasonable doubt standard, or whether they believed the standard should be different. Finally, Bollendorf asked whether there was any reason why a juror may not be able to sit in judgment of another.

¶ 10. Defense counsel, Jeffery Livingston (Livingston), then conducted his voir dire. None of the prospective jurors responded to the following questions:

Whether anyone had dealings with his law office under its current or past name. (R. 60:21).

Had anyone been prosecuted for a traffic crime? (R. 60:21).

Did anyone feel they could not hold the state to the high burden of beyond a reasonable doubt? (R. 60:21).

Did anyone believe that a police officer made for a more believable witness? (R. 60:22).

Did anyone believe that Lamon must have done something wrong to be in this position? (R. 60:22).

Did anyone feel they would have a hard time judging the State's case without hearing Lamon testify, and would anyone hold it against the defense if the defense argued the State did not meet its burden and then the defense did not put on its own case? (R. 60:23).

¶ 11. The attorneys then exercised their peremptory strikes. Out of the presence of the jury Livingston challenged Bollendorf s peremptory strike of Bell. Livingston made a Batson challenge, asking for a race-neutral explanation of the strike, on grounds that the defendant was African-American, and the prosecutor struck the only African-American on the panel. Livingston also pointed out that the victim appeared to be approximately the same age and the same race as the juror who was struck.

¶ 12. The circuit court noted that Bell was the only African-American juror and noted that Bollendorf did not. ask individual questions. The circuit court then asked Bollendorf for a reason for her peremptory strike.

¶ 13. Bollendorf responded giving several reasons for her strike. First, Bollendorf said that her office and the federal prosecutor have prosecuted a number of Bells who live in Beloit through the years, and it is a well-known criminal name in Beloit. Next, Bollendorf pointed out that Bell's address is in a high crime area in Beloit and that the State obtained police reports evidencing police contacts at that address. These contacts, according to Bollendorf, ranged from civil processes to stolen vehicles. Bollendorf argued that Bell in the venire may be related to the people at that address, and that there was a number of police contacts at Bell's address, yet Bell did not answer the State's question regarding contact with their office or with law enforcement officers. Bollendorf also argued that Bell's juror card listed his employment as "varies."

¶ 14. In response to the prosecutor's answers, Livingston said that Bell is a fairly common name; Bell did not respond to the question about family members dealing with the district attorney's office; and Bollen-dorf did not question Bell individually as to whether he was related to the Bell family involved in criminal activity. Livingston also stated that the police contacts at Bell's address were mostly civil in nature, and that Bollendorf did not inquire individually into Bell's residence at that address. Livingston argued that Bollen-dorf could have asked Bell questions about these circumstances individually, and asked the court to individually voir dire Bell.

¶ 15. Bollendorf argued that Exhibit 1, the exhibit listing police contacts at Bell's address, clearly shows contacts with people named Bell. Bollendorf reiterated her concern that Bell was not completely forthright and honest as a prospective juror, because he did not answer the questions about whether a relative had been convicted or the victim of a crime. This question was important because there was an incident at Bell's address where a "Mrs. Bell" reported her husband stole the car for purposes of supporting a drug habit. Bollendorf asserted that a lack of response from Bell the first time indicated he may not respond forthrightly with further voir dire, and the State didn't want to appear to single him out.

¶ 16. The circuit court found that Bollendorf had just cause for the peremptory strike, but did not elaborate on its decision. As a result Bollendorf s peremptory strike was allowed to stand.

¶ 17. At trial, the jury found Lamon guilty of armed robbery on April 15, 1999. On May 24, 1999, Lamon pled guilty to the charge of repeat offender and was sentenced to an indeterminate prison term not to exceed 20 years.

¶ 18. Lamon filed a post-conviction motion for a new trial on the grounds that the State's reasons offered for the peremptory challenge were not sufficient justifications. The circuit court, Honorable Daniel T. Dillon presiding, denied the motion on November 20, 2000, finding, inter alia, that it was reasonable for Bollendorf to conclude Bell was being less than candid in not mentioning these police contacts in which the victim presumably resided at the Bell residence.

¶ 19. The circuit court also determined that it was not necessary for the State to question Bell in front of the other jurors in order to prove the reason for the strike.

¶ 20. Lamon appealed and on April 4, 2002, the court of appeals held that Lamon failed to prove that the State did not have a race-neutral reason to strike Bell. The court of appeals held that the circuit court's ruling was not clearly erroneous to accept the prosecutor's explanation that she did not ask Bell individual questions because she thought some of Bell's responses were not completely forthright and honest, and that she did not want to single Bell out.

¶ 21. Lamon petitioned this court for review. We granted review on September 26, 2002.

II. PEREMPTORY STRIKES, THE BATSON TEST AND ITS PROGENY

¶ 22. Wisconsin has adopted the Batson principles and analysis. See State v. Davidson, 166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991); State v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711. For that reason, it is necessary that we begin our analysis with a summary of peremptory challenges and the Batson analysis.

¶ 23. Originating in English common law, the peremptory challenge is part of the fabric of our jury system and allows parties to strike a potential juror without a reason stated, without inquiry, and without being subject to the court's control.³ The purpose of the peremptory strike is to eliminate extremes of partiality on both sides and help ensure that jurors will decide the case on the basis of the evidence presented. Swain v. State of Ala., 380 U.S. 202, 219 (1965). As a result, even though the peremptory strike is not constitutionally required, the United States Supreme Court said over a century ago that the peremptory challenge is "essential to the fairness of trial by jury." Batson, 476 U.S. at 107 (Marshall, J. concurring) (citing Lewis v. United States, 146 U.S. 370, 376 (1892)).

¶ 24. 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 U.S. Supreme Court in Swain, 380 U.S. 202. In that case the Court held that in order for a defendant to make a prima facie showing that the State had used peremptory strikes in contravention of equal protection principles, the defendant was required to show that a prosecutor had a pattern of using such strikes in a racially discriminatory manner "in case after case". Id. at 223. The high standard was set based on a belief that any limitation would radically alter the traditional unfettered nature of peremptory strikes. Id. at 221-22. See also, Batson, 476 U.S. at 98.

¶ 25. In 1986 the U.S. Supreme Court affirmed the prosecutor's general right to exercise peremptory strikes for any reason related to the prosecutor's view of the case outcome. Batson, 476 U.S. at 89. However, the Supreme Court held that: "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. In Batson, the Court rejected Swain's "crippling" evidentiary burden for making a prima facie case of equal protection violation, and held that a defendant could establish a prima facie case by relying solely on the facts of his or her case. Id. at 91-92, 96.

¶ 26. In reaching its decision, the Batson Court held that the "invidious quality" of government action alleged to be racially discriminatory in violation of the Equal Protection Clause "must ultimately be traced to a racially discriminatory purpose." Id. at 93 (quoting Washington v. Davis, 426 U.S. 229, 240 (1976)).⁴

¶ 27. As a result, the Batson Court outlined a three-step process for determining if a prosecutor's peremptory strikes violated the Equal Protection Clause. Id. at 96-98.

¶ 28. First, in order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant's race from the venire,⁵ and (2) the facts and relevant circumstances raise an inference that the prosecutor used peremptory strikes to exclude venirepersons on account of their race. Id. at 96. The circuit court must consider all relevant circumstances in determining whether a defendant made the requisite showing. Those circumstances include any pattern of strikes against jurors of the defendant's race and the prosecutor's voir dire questions and statements. The Batson Court expressed "confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Id. at 97.

¶ 29. Under the second step of Batson, if the circuit court finds that the defendant has established a prima facie case, "the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]." Id. The prosecutor's explanation must be clear, reasonably specific, and related to the case at hand. Id. at 98 n.20. However, the prosecutor's explanation need not rise to the level of justifying exercise of a strike for cause. Id. at 97-98.

¶ 30. At the second Batson step, a "neutral explanation" means an explanation based on something other than the race of the juror. Id. at 98. Facial validity of the prosecutor's explanation is the issue. Unless discriminatory intent is inherent in the prosecutor's explanation, "the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360. Unless the prosecutor exercised a peremptory strike with the intent of causing disparate impact, that impact itself does not violate the principle of race neutrality. Id. at 362.

¶ 31. A prosecutor's reasons for his or her peremptory challenge need not rise to the level of a for cause challenge. According to Burkett, the explanation proffered at the second step need not be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 768 (1995). Purkett clarified Batson's requirement for a clear and reasonably specific explanation of legitimate reasons, related to the particular case, for exercising a challenged peremptory strike. The Burkett court said:

This warning was meant to refute the notion that a prosecutor' could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection.

Id. at 769. Moreover, as noted previously, the Court in Purkett said that even a "silly or superstitious" reason, if facially nondiscriminatory, satisfies the second step of Batson. Id. at 768.

¶ 32. Finally, the third step of Batson requires that when the prosecutor offers a race-neutral explanation, the circuit court has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established. Batson, 476 U.S. at 98. As part of this third step, a defendant may show that the reasons proffered by the State are pretexts for racial discrimination. State v. Walker, 154 Wis. 2d 158, 176 n.11, 453 N.W.2d 127 (1990). The defendant then has the ultimate burden of persuading the court that the prosecutor purposefully discriminated or that the prosecutor's explanations were a pretext for intentional discrimination. Batson, 476 U.S. at 94 n.18, 98. Therefore, it is at this step that the issue of persuasiveness and plausibility of the prosecutor's reasons for the strike become relevant, and "implausible or fantastic justifications may [] be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768.

¶ 33. In addition to accepting "silly", "superstitious" justifications for striking a juror, intuitive strikes have been upheld as valid strikes. United States v. Terrazas-Carrasco, 861 F.2d 93, 94-95 (5th Cir. 1988). See also United States v. Williams, 934 F.2d 847, 850 (7th Cir. 1991) (holding that adequate explanations for exercising a peremptory strike may include a prosecutor's "intuitive assumptions that are not fairly quantifiable.").

¶ 34. Applying Batson and its progeny, the rule today is that the Equal Protection Clause is not violated simply because there is a racially discriminatory or a disparate impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. As noted previously, the Court in Hernandez said: "Discriminatory purpose [] implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker [] selected [] a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Hernandez, 500 U.S. at 360 (internal citations and quotations omitted).

¶-35. Despite the protections outlined in the three-part test of Batson, Lamon contends that discrimination in jury selections "remains widespread." (Pet'r Br. at 7). We recognized 13 years ago that racial discrimination in the jury selection process harms three distinct groups. Walker, 154 Wis. 2d 158 at 171. First, defendants are harmed when racial discrimination infects the jury selection process. Id. Second, the rights of the excluded jurors are violated when they are denied the opportunity to serve as jurors on account of race. Id. (citing Batson at 86-87). Third, society is harmed because such discriminatory procedures undermine public confidence in the fairness of our system of justice. Id. That being said, we believe that the three-part Batson test acknowledges those potential dangers, and guards against the deprivation of equal protection. Batson, 476 U.S. at 86.

III. ISSUES

¶ 36. This court is presented with two issues. First, we must answer whether the circuit court's application of the Batson test was incomplete, so that our review should be de novo. Batson, 476 U.S. at 96-98.

¶ 37. Based on the U.S. Supreme Court's decision in Hernandez, we hold that the appropriate standard of review is clearly erroneous.⁶ Given the similar facts of this case, the determination of the credibility of prospective jurors and attorneys by the circuit court will be given great deference, and will not be overturned unless it was clearly erroneous. Here, the circuit court judge was present during the voir dire, and thus, had sufficient opportunity to observe the prospective juror and to ascertain the credibility of Bollendorf s reasons for her peremptory strike of Bell.

¶ 38. Second, we must determine whether it was clearly erroneous for the circuit court judge to permit the prosecution's peremptory challenge of Bell to stand. We hold that under the totality of the circumstances in this case, individual questions did not have to be asked of the stricken juror, Bell. Bollendorf proffered several race-neutral reasons for the strike, reinforced with evidence demonstrating a lack of discriminatory intent. The primary credibility determination relates to the proponent of the strike, and the circuit court judge is in the best position to make an appropriate determination. The record in this case supports the circuit court's decision to allow Bollendorfs peremptory strike to stand. As a result, we hold that the circuit court decision was not clearly erroneous in accepting Bollendorf s reasons for striking Bell in this case.

IV STANDARD OF REVIEW

¶ 39. We must first determine the appropriate standard of review.

¶ 40. Lamon argues that, although the general rule set forth in Batson and Hernandez is to apply a clearly erroneous standard, the facts of this case warrant de novo review. Based on Holder v. Welborn, 60 F.3d 383, 388 (7th Cir. 1995), de novo review is appropriate because the circuit court did not have the opportunity to assess the credibility of the stricken juror. Lamon maintains that the lack of voir dire of Bell in this case prevented the circuit court judge, Judge Edwin C. Dahlberg, from determining Bell's credibility, which is essential in making a proper step three Batson evaluation. Accordingly, Lamon argues that a basis for deference does not exist in this case, and therefore, this court should apply a de novo standard of review.

¶ 41. As noted previously, we affirm the court of appeals' application of the clearly erroneous standard of review as established in Batson and Hernandez. Batson, 476 U.S. at 98 n.21; Hernandez, 500 U.S. at 364. The Court in Batson held that discriminatory intent is a question of fact decided by the circuit judge. Batson, 476 U.S. at 98 n.21. Moreover, the U.S. Supreme Court held that, like any other factual finding, a trial court's conclusion on the issue of discriminatory use of peremptory challenges at step three should be given great deference. Id. See also Hernandez, 500 U.S. at 364.

¶ 42. In reaching that decision the Batson Court held that the trial court judge is in the best position to determine the credibility of the state's race-neutral explanations, so great deference will be given to that ruling. Batson, 476 U.S. at 98 n.21 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

¶ 43. The general rule in Batson remains good law, and was reiterated and emphasized in Hernandez, 500 U.S. at 365. Hernandez held that the circuit court's finding on the issue of discriminatory intent should not be overturned unless it is found that the determination was clearly erroneous. Id. at 369. The Hernandez Court explained:

Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that 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."

Id. at 365 (citations omitted).

¶ 44. As a result of the U.S. Supreme Court's holding that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact, the Hernandez court expressly rejected the notion of independent appellate review and said:

We have difficulty understanding the nature of the review petitioner would have us conduct. Petitioner explains that"((Independent review requires the appellate court to accept the findings of historical fact and credibility of the lower court unless they are clearly erroneous. Then, based on these facts, the appellate court independently determines whether there has been discrimination." But if an appellate court accepts a trial court's finding that a prosecutor's race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.

Id. at 366-67 (citations omitted).⁷

¶ 45. Wisconsin law is in accord with the U.S. Supreme Court, holding that discriminatory intent is a question of historical fact, and the clearly erroneous standard of review applies at each step of the Batson analysis. State v. Gregory, 2001 WI App 107, ¶ 5, 244 Wis. 2d 65, 630 N.W.2d 711; State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App. 1992).

¶ 46. However, as pointed out by Lamon, there is an exception, recognized by some courts, to the general rule of giving deference to the lower court. According to this exception, de novo review is appropriate if the trial court judge does not have an opportunity to evaluate credibility. Holder, 60 F.3d at 388 (7th Cir. 1995). In Holder, the Seventh Circuit Court of Appeals held that when a trial court judge is not in a position to observe the members of the venire as they answered questions in order to make credibility determinations, deference will not be given to the decision and a de novo standard of review is appropriate. Id.

¶ 47. In Holder the habeas court held a Batson hearing eight years after the original voir dire and trial. The habeas judge and the magistrate conducting the Batson hearing had not been present at the original voir dire proceeding, and "therefore did not have the opportunity to observe the demeanor of the members of the venire as they answered the questions posed by the attorneys." Id. Furthermore, the attorneys had little memory of the actual voir dire. Consequently, the habeas court was in no better position to judge the credibility of the prosecutor or the eliminated jurors than the appellate court. In light of the aforementioned circumstances, great deference to the trial court's decision was not warranted, and the appellate court applied a de novo standard of review. Id.

¶ 48. Using Holder, Lamon asserts that de novo review is required in this case because the reasons set forth for application of the clearly erroneous standard in Batson and Hernandez do not apply here. It is argued that Judge Dahlberg was unable to evaluate the credibility of Bell; therefore, the basis of the Hernandez rule does not apply.

¶ 49. As noted previously both Batson and Hernandez state that the trial court's decision enjoys great deference because that judge is in the best position to evaluate the credibility of the juror and the credibility of the prosecutor's proffered reasons for using a peremptory strike.

¶ 50. Like the magistrate in Holder, who was unable to evaluate the credibility of the juror, Lamon argues that Judge Dahlberg was not privy to an individual voir dire of Bell. As a result, this court should apply the de novo standard of review in Holder when examining prosecutorial or juror credibility.

¶ 51. Conversely, the State argues that the clearly erroneous standard should apply. Great deference should be given to the circuit court judge here because he was present to personally observe and to ascertain the credibility of the attorneys and jurors. The State maintains that Holder is not the controlling standard of review for the case at bar, because the procedural circumstances in Holder are distinguishable. In Holder the Batson hearing was conducted eight years after the original voir dire and trial, and the presiding judge and magistrate were not present at the original voir dire. In contrast, here, the circuit court judge was able to oversee the entire voir dire process.

¶ 52. We agree with the State's arguments. Although Lamon attempts to rely on Holder in support of her argument that the de novo standard is the appropriate standard of review, Holder is procedurally distinguishable and not controlling in this case. Holder, 60 F.3d 383.

¶ 53. Unlike the magistrate in Holder, the record in this case illustrates that the circuit court judge had sufficient opportunity to examine the credibility of the prosecutor's justifications for the strike. In this case, Judge Dahlberg had other first-hand information concerning the prospective juror along with the opportunity to observe personally Bell's response. Hernandez held that it is the province of the trial judge to weigh credibility because of the nature of that position, but did not hold that credibility could only be established through hearing personalized voir dire questions and answers. Hernandez, 500 U.S. at 365. Moreover, a juror's responses to voir dire may not be the judge's sole piece of information to be weighed in a circuit court judge's evaluation in a Batson hearing determination. As previously noted, in the third step of Batson the court evaluates the overall credibility of the prosecutor's proffered explanations. Discriminatory intent, if it were present, would emanate from the attorney striking the juror. Hence, the judge's interpretation of the attorney's credibility is a key factor, and any juror's responses would only supplement that decision. In this case the circuit court judge had ample opportunity to weigh the prosecutor's credibility.

¶ 54. This case involves the same type of situation that was present in Hernandez. This case involves the striking of a potential juror who is of the same race as the defendant. The circuit court judge in this case was in the best position to evaluate the level of Bollendorf s knowledge of information relating to Bell, in combination with Bell's non-responsiveness to the general voir dire. As in Hernandez, the circuit court judge in this case chose to believe the State's race-neutral explanations for the challenge. Hernandez held that such a determination was a pure issue of fact under Batson and was subject to review under a deferential standard. Hernandez, 500 U.S. at 364. In reaching its decision the Hernandez Court held that a clearly erroneous standard was in accord with the treatment of that issue in other equal protection cases. Id. at 364-70.

¶ 55. It is important to note that an inflexible rule applying a clearly erroneous standard in all cases may be troublesome in certain situations. Therefore, in limited situations where the fact that a member of the venire has not been questioned individually contributes to the totality of the circumstances disproving the credibility of the explanation offered by the prosecution, de novo review may be the appropriate standard, as it was in Holder.

¶ 56. Lamon is correct that lack of personalized voir dire of a juror may be a factor, which inhibits a judge's evaluation of credibility in peremptory challenge explanations. However, inhibiting is not equivalent to removing the ability to determine. A judge could have a basis for making a credibility determination without individualized voir dire. As in this case, a judge could use other pieces of information, or "factors" to determine credibility. Here, the circuit court judge relied on, inter alia, Bell's lack of response to general voir dire questions. This appeared to show a lack of candor, when combined with the information in the police report.

¶ 57. As a result, we hold that based on the U.S. Supreme Court's decision in Hernandez, the facts of this case require us to give deference to the circuit court. Thus, we will not overturn the circuit court's decision unless we find it to be clearly erroneous.

¶ 58. We hold that under the circumstances of this case the prosecutor was not required to ask individual questions of the stricken juror. The totality of the circumstances here convince us that de novo review is not required.

V ARGUMENTS ABOUT RACE-NEUTRAL JUSTIFICATIONS FOR PEREMPTORY STRIKES

¶ 59. Given the long history of racial discrimination in jury selection, Lamon asks this court to reverse the decision of the court of appeals, and remand the case for a new trial.⁸

¶ 60. With regard to step three of the Batson test, Lamon maintains the prosecutor, without asking Bell individual voir dire questions, illustrated evidence of modern-day jury selection discrimination. Lamon argues that peremptory challenges cannot be based solely on race, yet Bell was the only African-American in the venire. Lamon argues, inter alia, that it is the circuit court's guidance in making the decision to uphold the peremptory strike, rather than the sufficiency of the reasons given by Bollendorf, that must be examined. Lamon asserts that the totality of the circumstance test plus "other factors" established in Walker should be used during step three of the Batson test because the judge must weigh the totality of the circumstances. (Pet'r Br. at 10) (citing Walker.; 154 Wis. 2d at 174-175). In support of this argument, Lamon argues that courts in other jurisdictions have held that the failure to voir dire a stricken juror is a factor in showing discriminatory intent.

¶ 61. Lamon argues that the State's refusal to conduct individual voir dire of Bell raises the inference that the State knew its race-neutral reasons for the strike would not be supported by the facts. In addition, Lamon maintains that the State's evidence in Exhibit 1, a list of police contacts at Bell's address, was not sufficient to support any proffered race-neutral claims. To the contrary, Lamon claims that the list does not conclusively prove that any arrests or convictions occurred at Bell's address. One contact with someone named Bell was civil in nature and the other ended in a withdrawn complaint. Additionally, Lamon claims that the evidence does not sufficiently prove whether prospective juror Bell lived at that address at the time of any of the listed occurrences. Finally, Lamon contends that Bell is a common name and should not necessitate an assumption of crime association.

¶ 62. Lamon maintains prospective juror Bell did not fail to disclose anything during the general voir dire. The State never specifically asked the venire whether any of them had "contact" with police, yet the State claimed one of the reasons for striking Bell was that he did not respond to questions about having contact with law enforcement officers.

¶ 63. Lamon further contends that the State prejudged Bell when the State claimed that Bell might not have been forthright if asked follow-up questions. The failure to ask follow-up questions, according to Lamon, is demonstrative evidence of the prosecutor's discriminatory intent.

¶ 64. Next, Lamon argues that both the Gregory holding and the findings in the post-conviction motion are contradictory and should be ignored. Gregory, 244 Wis. 2d 65. Lamon contends that Gregory states that the decision in a Batson ruling must be made before the jury is sworn; thus, the State should not be able to rely on the findings of the post-conviction motion. Id., ¶ 14. As such, Lamon argues that reliance on Judge Daniel T. Dillon's post-conviction findings would overrule Gregory. Alternatively, Lamon argues that Gregory is not applicable to this case because the juror who was struck in Gregory was questioned individually.⁹

¶ 65. Beyond the refusal to individually voir dire Bell, Lamon argues that the State's use of certain terms and phrases was discrimination in disguise. For example, Lamon contends that "high crime area" was code for "black neighborhood," and "varied employment" was code for "unemployed person."¹⁰

¶ 66. Moreover, Lamon contends the State's claim that "individual questions for Bell would have singled him out" does not qualify as a race-neutral reason. Lamon notes that the prosecutor singled out white jurors for individual voir dire; therefore, asking Bell questions would not have isolated him.

¶ 67. Finally, given the above arguments, Lamon argues a new trial is warranted because the commission of a Batson error is not harmless error. Lamon cites a Second Circuit decision, Tankleff, where the court held a Batson error is a "structural error," which is not subject to harmless error review. Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998).

¶ 68. The State disagrees and asserts that even though the law has expanded to protect against discrimination since Batson, the right to exercise peremptory challenges is still protected. Additionally, the State asserts that evidence of a potentially discriminatory or disparate impact is not sufficient to establish a Batson violation. To the contrary, discriminatory intent must be proven, and according to Purkett v. Elem, 514 U.S. (1995), almost any legitimate explanation given for a strike could satisfy the second step of Batson.

¶ 69. The State maintains that Bollendorf gave several race-neutral reasons for using her peremptory strike. Those reasons were based on information obtained before voir dire, and on Bollendorf s observations of Bell during voir dire. The reasons given by Bollendorf for her peremptory strike of Bell included: (1) that her office and the federal prosecutor have prosecuted a number of Bells who live in Beloit through the years, and it is a well-known criminal name in Beloit; (2) that Bell's address is in a high crime area in Beloit, and that the State obtained police reports evidencing police contacts at that address;¹¹ (3) that Bell's juror card listed his employment as "varies," which goes to his responsibility as a juror; and (4) that Exhibit 1, containing the police contacts at Bell's address, spoke for itself. The State further argued that a lack of response from Bell during the initial voir dire indicated that he may not respond forthrightly with further questioning, and the State didn't want to appear to single him out.

¶ 70. As stated earlier, the third step of Batson is the relevant inquiry in this case.¹² In examining that step, Burkett held that the burden of persuasion showing a racially motivated strike rests with the opponent of the strike. Purkett, 514 U.S. at 767. The State argues, using the totality of the circumstances test, that Lamon did not carry the burden of proving discriminatory intent. The application and outcome of the totality of the circumstances test is determined on a case-by-case basis. The State maintains that the individual reasons given by the prosecutor should he viewed in combination with one another.

¶ 71. In addition, the State argues that Lamon overstates the holding in Walker with respect to the totality of the circumstances test. Possible factors that may raise an inference of discrimination could contradict each other. For example, failure to examine a juror or singling a juror out could each be argued to weigh against race neutrality, so it is important to examine the other circumstances surrounding the strike.

¶ 72. Finally, the State relies on the holding in Davidson, which held that individual follow-up questions are not required in order to strike a potential juror. Davidson, 166 Wis. 2d 35. Accordingly, the statement that the prosecutor believed Bell would not be forthright was based on research combined with Bell's unresponsiveness to general voir dire questions. Hunches are permissible when there is no discriminatory intent, and discriminatory intent must be proven by the opponent of the strike.

VI. APPLICATION OF THE CLEARLY ERRONEOUS STANDARD TO THE JUSTIFICATION OFFERED

¶ 73. As noted above, this case concerns the third step of the Batson test.

¶ 74. Applying the clearly erroneous standard of Hernandez, we uphold the decision of the court of appeals that no Batson violation occurred. The prosecutor gave credible, race-neutral, reasons upon questioning by the court for her peremptory challenges. In this case the record shows that the prosecutor had done research about Bell, which stands in stark contrast to the prosecutor in Walker who struck the only African-American without knowing anything about the juror. Walker, 154 Wis. 2d 158.

¶ 75. In Walker, the defendant, an African-American, was charged with armed robbery. The jury selection consisted of twenty possible jurors and only one was an African-American. During the voir dire examination of potential jurors, the record in Walker showed that African-American venireperson "did not answer in a way that would suggest a disqualifying attitude to any general questions directed at the pool of jurors by the judge or by the lawyers, nor did the court or counsel ask the [African-American] venireperson any specific questions." Walker, 154 Wis. 2d at 164. In seating a twelve-person jury the prosecutor and defense counsel were each allowed to use peremptory challenges to eliminate four of the venirepersons from the pool. The prosecutor in Walker used his third peremptory challenge to eliminate the only African-American ve-nireperson. Id. On review this court found that the record in Walker indicated "that every prosecution witness was white while all alibi witnesses for the defense were [African-American]." Id. at 178. Moreover, when asked his reason for the strike, the prosecutor admitted that he struck the African-American venirep-erson "because he knew nothing about him." Id. Upon an independent review of the record, this court found the two reasons provided by the prosecutor for using a peremptory challenge to strike the only African-American venireperson unacceptable. This court said:

First, the prosecutor denied that he had a discriminatory motive. The Court in Batson declared that the mere denial of discriminatory intent is not sufficient to rebut an inference of purposeful discrimination. Batson, 476 U.S. at 98. Second, the prosecutor explained that, going into the jury selection process for Walker's trial, he only had information about jurors with juror numbers between 841 and 906. The black venireperson had a juror number of 944. The prosecutor thus stated that he struck the black venireperson because he had no information about him. This explanation is unacceptable because it is not "clear and reasonably specific." Moreover, this explanation appears to be pretex-tual.

Id. at 178. Accordingly, this court held that the facts in Walker "raise[ed] an inference of purposeful discrimination" on behalf of the prosecutor. Id.

¶ 76. Thus, unlike the situation in Walker, Bell's lack of response to several questions, in combination with Bollendorf s information on Bell, gave support to Bollendorfs explanation for her peremptory strike of Bell. As noted previously, the U.S. Supreme Court recently addressed the matter of credibility of a prosecutor's reasons for his or her use of a peremptory strike in Miller-El v. Cockrell and said: "Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029 (2003). The Court held that a state court need not make detailed findings addressing all the evidence before it. Id.

¶ 77. Although it may be argued that Judge Dahl-berg did not set forth enough reasons for his decision to allow the State's strike to stand, such an argument is weakened by the holding in Miller-El, where the Court held that it was not necessary to make detailed findings so long as the arguments were adequately considered. Id.

¶ 78. Determining discriminatory intent under Batson simply requires the consideration of the "totality of the relevant facts." Hernandez, 500 U.S. at 363; see also Walker, 154 Wis. 2d at 173-74, 179.

¶ 79. Turning to the facts of this case, it is undisputed that the only African-American juror was struck from the venire, and the defendant is African-American. However, when questioned by the circuit court judge, the State offered several race-neutral reasons for exercising her peremptory challenge against Bell.

A. Name/Address

¶ 80. When questioned why she struck Bell, Bol-lendorf explained that the prosecutor's office, as well as the federal prosecuting attorney's office, had prosecuted a number of Bells who live in Beloit. According to Bollendorf, Bell is a well-known criminal name in Beloit. Next, the State noted Bell's address is in a high crime area in Beloit and that the State obtained police reports evidencing police contacts at that address. These contacts ranged from civil processes to stolen vehicles. The State argued that the Bell in the venire may be related to the people at that address and that there were a number of police contacts at Bell's address, yet Bell did not answer the State's question regarding contact with the district attorney's office or with law enforcement officers. Furthermore, he did not mention anything about relatives who may have had contacts, even though, in Exhibit 1, Bells are listed at his address.

¶ 81. The Federal Court for the Western District of Wisconsin held in Davidson v. Gengler, 852 F.Supp. 782, 788 (W.D. Wis. 1994) that a prosecutor's knowledge that a challenged juror possessed the same name as known criminals in the area was a race-neutral explanation. Similarly, striking an African-American juror because of a familial relationship to individuals involved in the criminal justice system is a neutral reason to strike a juror. Id.

¶ 82. In reaching its decision the Gengler court relied on a number of cases. First, the court relied on United States v. Johnson, 941 F.2d 1102 (10th Cir. 1991), which held that striking a potential juror, who was African-American, because his brother was once convicted of a crime and because his family history suggested anti-government bias, were race-neutral reasons for a peremptory strike. Id. at 1109. Prior family involvement with drug offenses is a race-neutral basis to strike such a potential juror. United States v. Bennett, 928 F.2d 1548, 1551 (11th Cir. 1991) superseded by statute as stated in United States v. Smith, 127 F.3d 1388, (11th Cir. 1997). See also United States v. Hughes, 911 F.2d 113, 114 (8th Cir. 1990) (incarceration of nephew of African-American potential juror is a race-neutral reason for a strike).

¶ 83. Additionally, when a potential juror has the same last name as someone previously convicted by the prosecutor, courts have accepted it as a race-neutral reason for a peremptory strike. Terrazas-Carrasco, 861 F.2d at 94-95 n.1.

¶ 84. In Terrazas-Carrasco the court of appeals held that the district court was not clearly erroneous in determining that a prosecutor's use of peremptory challenges to exclude Hispanic veniremen from the jury did not violate defendant's equal protection rights. With respect to the prosecutor's use of peremptory challenges to exclude the Hispanic veniremen, the Fifth Circuit said:

We "must accept the [inquiring] judge's credibility choice" with respect to the prosecutor's reasons. Valid reasons for exclusion may include "intuitive assumptions" upon confronting a venireman. In Lance, we upheld such factors as eye contact, demeanor, age, marital status, and length of residence in the community as valid grounds for peremptory challenge. In this case, the reasons articulated are of the same variety.

Id. at 94-95 (citing United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988)). In footnote one of Terrazas-Carrasco the court stated that the valid, race-neutral reasons articulated for the peremptory strike in that case "include having the same last name as someone previously convicted by the prosecutor; age; eye contact; and body language." Id. at 95 n.1 (emphasis added).

¶ 85. Along with names, addresses may provide an acceptable race-neutral justification for a peremptory strike. As noted by the State in its brief, case law is quite clear that location of a venireperson's residence provides a race-neutral reason for a peremptory strike when a residential location has some relationship to the facts of the case. (Resp't Br. at 22 n.3). For example, in United States v. Briscoe, the court upheld a peremptory strike where prosecutor's explanation "went well beyond a cursory statement that Mr. Jeffries resided on the west side of Chicago." United States v. Briscoe, 896 F.2d 1476, 1488 (7th Cir. 1990). However, courts have recognized that allowing the exclusion of African-American venirepersons simply because they live or work in an area frequented by gangs has "an enormous potential to disproportionately exclude black jurors in most cases involving black gang members." Williams v. Chrans, 957 F.2d 487, 489-90 (7th Cir. 1992). With respect to the issue of resident location, the Ninth Circuit said: "[w]hat matters is not whether but how [a] residence is used." United States v. Bishop, 959 F.2d 820, 826 (9th Cir. 1992).

¶ 86. In support of the proffered race-neutral reasons for the peremptory strike the State introduced Exhibit 1 during the Batson hearing. Exhibit 1 listed several law enforcement contacts at the address that Bell had listed in his juror questionnaire. One of those contacts involved a complaint about a stolen vehicle and parties who were named Bell. Accordingly, Exhibit 1, like the case in Briscoe, explained the nature and previous use of the residence, which went beyond a "cursory statement" that Bell simply lived in a high crime area. Id.

B. Juror Veracity

¶ 87. Furthermore, the State argued that Exhibit 1, coupled with Bell's lack of response, indicated that he may not respond forthrightly to further voir dire questions directed to him. Bell's failure to disclose during voir dire any police contacts at his residence is a plainly race-neutral justification for striking him. See Coulter v. Gilmore, 155 F.3d 912, 919-20 (7th Cir. 1998) (calling the prosecutions striking of two venirepersons because they failed to disclose that they had been previously charged with crimes "legitimate and nondiscriminatory"). See also Baldwin v. State, 732 So.2d 236, 243 (Miss. 1999) (prosecutor's explanation that venirepersons lived in high drug trafficking areas and had family members who had been convicted of crimes found to be race-neutral).

C. Not Wanting to Single Him Out

¶ 88. The defense maintains that Bollendorf could have asked Bell individual questions on voir dire. Bollendorf stated that she did not want to appear to single Bell out. While the lack of personalized voir dire of a juror may inhibit a judge's evaluation of the attorney's credibility in peremptory challenge explanations, inhibiting is different than eliminating the opportunity to determine credibility altogether.

¶ 89. Questioning or failing to question a potential juror presents a problematic tautology. Failing to examine a juror, or conversely singling out a juror, can be equally argued to weigh against a race neutral justification for a peremptory strike. In Gengler the court held that a prosecutor was allowed to rely on information other than individual voir dire to provide a basis for his race neutral explanation. Gengler, 852 F. Supp. at 789. According to Gengler individual follow-up questions on voir dire are not required in order to strike a potential juror. In this case the refusal to conduct individualized voir dire of Bell may be an isolated factor arguably evidencing discriminatory intent. However, this factor alone is not conclusive of discrimination during jury selection. In light of the totality of the circumstances, the numerous race-neutral reasons proffered by the State outweigh any alleged discriminatory intent resulting from the failure to question Bell further.

D. Unemployment

¶ 90. The State also explained that Bell's juror card listed his employment as "varies," which goes to his responsibility as a juror. The Seventh Circuit has held that unemployment may provide a sufficiently race-neutral explanation for a strike. United States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997). In reaching that decision the court in Lewis relied on cases which recognize unstable employment, or unemployment status, as sufficient race-neutral explanations for a peremptory strike. Id. (citing United States v. Hunter, 86 F.3d 679, 683 (7th Cir. 1996), cert. denied, 519 U.S. 985, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996) and United States v. Hughes, 970 F.2d 227, 230-31, (7th Cir. 1992)). See also United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir. 1990); State v. Hernandez, 170 Ariz. 301, at 305, 823 P.2d 1309 (1991).

E. Totality of the Circumstances

¶ 91. It is clear from the record that the evidence in Exhibit 1, as well as clear case law, supported Bollendorfs explanations for her peremptory strike. Bollendorf relied on a detailed police report of contacts at Bell's address, along with her personal knowledge of prosecutions against other persons named Bell, and her observations of Bell and his answers during voir dire. Based on the race-neutral reasons offered by Bollendorf for her peremptory strike, we find that Lamon did not meet the burden of proof required to show that the State's reasons were not race-neutral. Accordingly, we affirm the court of appeals' decision and hold that the decision of circuit court in allowing the strike to stand was not clearly erroneous. As a result, we find no error and need not engage a harmless error analysis.

VII. CONCLUSION

¶ 92. In summary, we affirm the court of appeals' decision. The decision of the circuit court was not clearly erroneous when it determined that the State's reasons for striking the juror were race-neutral; and, therefore, allowed the peremptory strike of Bell to stand. The State listed several acceptable race-neutral reasons for its strike of Bell and provided a detailed police report of contacts at Bell's address in support of its reasons for the strike. Although the State did not individually question Bell further, Davidson instructs that such questioning is not necessary. Furthermore, under the totality of the circumstances test, any alleged discriminatory intent evidenced by the prosecutor's decision not to question Bell individually, was outweighed by the race-neutral explanations offered.

¶ 93. Based on well-settled law, we accord deference to the decision of the circuit court in this case and hold it was not clearly erroneous to accept the reasons offered by the State in justification for its peremptory strike.¹³

By the Court. — The decision of the court of appeals is affirmed.

1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

2 Bollendorf listed Leeman Jones, Officer Dan Daly, Officer Tom Niman, Officer Bobby Pittman, Lamon's family including Maggie Lamon and Bobbie Lamon a/k/a Bobbie Goode.

3 See Batson v. Kentucky, 476 U.S. 79, 103-05 (1986) (Marshall, J. concurring) for a detailed history of peremptory strikes.

4 " 'Discriminatory purpose'. .. implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . .. selected ... a particular course of action at least in part 'because of not merely 'in spite of,' its adverse effects upon an identifiable group." Hernandez v. New York, 500 U.S. 352, 360 (1991) (citing Personnel Adm' of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

5 A defendant of whatever race is entitled to a jury selected without discrimination. See Powers v. Ohio, 499 U.S. 400 (1991). See also State v. Lopez, 173 Wis. 2d 724, 728, 496 N.W.2d 617 (1992).

6 We recognize that Hernandez addresses federalism issues about review of state court and federal court decisions. While we are not presented with any federalism issues, we nevertheless cite the Hernandez case for the proposition that the appropriate standard of review is clearly erroneous.

7 See also United States v. Terrazas-Carrasco, 861 F.2d 93, 94, 5th Cir. (Tex. 1988)(holding that a "clearly erroneous" or "great deference" standard of review is applied in the federal court when reviewing a Batson challenge) (internal citations omitted).

8 Neither the State, nor Lamon challenges the validity of steps one and two of the Batson test. (Pet'r Br. at 7 and 9).

9 We need not address whether the holding in. Gregory negates examining the post-conviction motion findings because the findings of that motion by a different circuit court judge are not necessary in determining the outcome of this case.

10 "However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike (citing Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992)). Therefore, if a defendant is attempting to prove the prosecutor's reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous." State v. Gregory, 2001 WI App 107, ¶ 14, 244 Wis. 2d 65, 630 N.W.2d 711.

11 These contacts ranged from civil processes to stolen vehicles. The State argued that the Bell in the venire may be related to the people at that address. Moreover, there was a number of police contacts at Bell's address, yet Bell did not answer Bollendorf s question regarding contact with their office or with law enforcement officers. Despite Bell's being listed at the address in Exhibit 1, Bell failed to mention anything about relatives who may have had contacts at his address.

12 The State points out that Lamon does not take issue with steps one and two of the Batson test.

13 Contrary to the hyperbole of the dissent, we do not "ignore!] well-established case law." (Dissent, ¶ 94). Rather, we have applied the relevant case law from the U.S. Supreme Court, the court of appeals, and this court to the facts and issues presented.

The dissent would have us strip away the deference due to the circuit court's determinations (Dissent, ¶ 99) as outlined in Hernandez, 500 U.S. at 364, and would, in effect, eliminate the defendant's ultimate burden of persuasion (Dissent, ¶ 128). The burden would be placed on the circuit court, not on the defendant.

The dissent has forgotten the importance of peremptory challenges, and how significant such challenges are in furthering the purpose of eliminating extremes of partiality on either side of a case. As noted earlier, the United States Supreme Court has characterized peremptory challenges as "essential to the fairness of trial by jury." Batson, 476 U.S. at 107 (Marshall, J. Concurring)(citing Lewis v. State, 146, U.S. at 376, 13 S.Ct. at 138).