State v. Sanders

388 Wis.2d 502

933 N.W.2d 670

2019 WI App 52

STATE of Wisconsin, Plaintiff-Respondent,

v.Malcolm J. SANDERS, Defendant-Appellant.^†

Appeal No. 2018AP1310-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: April 24, 2019

Opinion Filed: August 7, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Tim Provis, Port Washington.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Hannah S. Jurss, assistant attorney general, and Brad D. Schimel, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

GUNDRUM, J.

¶1 Malcolm Sanders appeals from a judgment of conviction entered after a jury found him guilty of two counts of delivering heroin, as a repeater and as a party to a crime. He claims the Equal Protection Clauses of the United States Constitution and Wisconsin Constitution were violated when the prosecutor used two of her peremptory challenges to strike from the jury panel the only two African-American potential jurors. Because we agree with the circuit court’s determination that the prosecutor did not engage in purposeful discrimination, we conclude there was no equal protection violation. We affirm.

Background

¶2 During voir dire, the circuit court, the prosecutor, and Sanders' counsel asked questions of potential jurors on the panel. When it was her turn, the prosecutor’s first question was: "Is there anyone here who has ... had a prior bad experience with law enforcement?" Several potential jurors raised their hands. Questioning continued in relevant part:

[Prosecutor]: .... I'm going to start with ... Ms. [R.]

.... [W]hat I'm really asking here is whether ... your prior experience with law enforcement would affect your ability to be fair in this case.

MS. [R.]: Yes.

[Prosecutor]: All right. And so does that mean that you would count the testimony of law enforcement officers as less credible than other witnesses, or is there some other way where you think your ability to be fair would be affected?

MS. [R.]: I wouldn't—I have an issue with the police. I have been pulled over for driving in the wrong area, so my perception might be skewed.

[Prosecutor]: Okay. And so when you are evaluating the testimony of law enforcement officers, would you believe their testimony to be less credible simply because they are law enforcement officers?

MS. [R.]: Yes.

[Prosecutor]: And so overall evaluating the evidence in this case knowing that there’s likely to be testimony from law enforcement officers, could you be fair?

MS. [R.]: Yes.

[Prosecutor]: So in spite of what you told me regarding your concerns, you think overall in this case you could be fair?

MS. [R.]: Yes, but ... I just do not feel comfortable with this.

[Prosecutor]: Okay. So you have an issue of comfort. But, again, comfort isn't really the deciding question. The deciding question is whether you can be fair, so you think regardless of your comfort level, in the end could you evaluate the evidence in this case fairly?

MS. [R.]: Yes.

....

[Prosecutor]: All right. How about the second row? Anybody have a prior bad experience with ... law enforcement in the second row?...

(Hand is raised.)

[Prosecutor]: Mr. [O.]?

.... [Prosecutor]: Okay. So, again, ... given your prior experience, do you think you can be fair in this case?

MR. [O.]: No.

[Prosecutor]: All right. And you heard the questions that I was asking Ms. [R.] Again, the overall question in this case is regarding evaluating the evidence, evaluating the testimony, which may include law enforcement. And so based upon that, do you think you can evaluate the evidence in a fair way?

MR. [O.]: Honestly, no.

[Prosecutor]: Okay. I would move to strike Mr. [O.] based upon those answers.

[Court]: I am going to pry a little bit. Why do you think you would be unable to be fair to both sides?

MR. [O.]: Personal reasons.

[Court]: Well, ... don't you think other people on the jury may have personal reasons that would affect their decision? [Court discussion about "justice" being "always blind and always in balance."] .... [I]s there some reason you would be unable to [decide based upon what the facts dictate]?

MR. [O.]: Yes. I'm sorry. It is just personal reasons.

[Court]: I'm afraid I'm going to have to pry a little bit more, sir.

MR. [O.]: I had a run-in when I was 16 with a cop.

....

MR. [O.]: And he threatened to beat my head in.

[Court]: Okay. Do you think all the police are like that?

MR. [O.]: I just—I don't know. I just don't trust them.

[Court]: [Discussion about being open-minded and jury duty "bring[ing] people together from all backgrounds."]

I don't think you would suggest we have only jurors consisting of people who have had good experiences with the police, do you?

MR. [O.]: No.

[Court]: So if I let you off because you had one bad experience with one bad police officer, what is going on? I'm going to repeat my question, and answer it honestly, and I'm not going to continue to examine you about it, but is there any reason for me to think you are any less likely to be fair to both sides than anyone else who is here?

MR. [O.]: Possibly. I'm just stuck in my ways right now.

[Court]: I'm going to let the lawyers examine you further. I'm going to deny your request, but you can examine further on it if you want.

[Prosecutor]: Okay. I think you have answered sufficient questions. So now is there anyone else in the second row who I missed who has had a bad experience with law enforcement?

(Hand is raised.)

[Prosecutor]: Mr. [S.]?

MR. [S.]: Mm-mmm.

[Prosecutor]: And, again, I'm not going to try to pry into details, but the question in the end ... is whether you can listen to the evidence and evaluate it fairly.

MR. [S.]: Honestly, I'm not sure. I would say I don't know, but based on my experience in the past, it probably would bubble up feelings of stuff that has happened to me in the past several times, and just to give a little detail, just being racially profiled in the past, and I don't know how that would come up in this case, but I have had it happen to me several times where I have just been pulled over without just cause.

[Prosecutor]: Okay. So, again, you heard the judge talk about people’s prior experiences, and the question I want to ask you now is whether you think that you are less able to be fair than anyone else on the jury.

MR. [S.]: Right now I don't think so. I mean, I'm saying I think I can be fair, but I'm just letting you know, you know, that has happened to me, and like I said, I don't know how that is going to come into this case as far as a reason for someone being pulled over or questioned or whatever the case may be, but I'm letting you know that is what happened to me in my past.

....

[Court]: Let me ask both of you gentlemen if the evidence satisfies you beyond a reasonable doubt that the defendant committed the crimes charged or either of the crimes charged, would you be able to vote guilty?

MR. [S.]: I would say yes.

[Court]: Would you be able to vote not guilty if the evidence did not come up to that standard?

MR. [S.]: Yes.

[Court]: Mr. [O.], how do you answer?

MR. [O.]: The second question, yes.

[Court]: What about the first question? If the evidence satisfies you beyond a reasonable doubt that the defendant committed one or both of the crimes, would you be able to return a verdict of guilty?

MR. [O.]: Possibly.

[Court]: Well, this one I've got to have an answer.

MR. [O.]: Yes or no?

[Court]: Yes, sir.

MR. [O.]: Yes.

....

[Prosecutor]: .... Now, as the judge has informed you, this case does involve allegations of delivery of drugs, so I'm going to ask a question about your personal experiences. Have you or someone close to you like a close family member or friend ever been arrested for a drug crime?

(Hands are raised.)

....

[Prosecutor]: Okay. I'll start in the back with Ms. [R.] And, again, my question in the end, what I'm trying to determine, is whether that past experience, whether involving yourself or a close family member or friend, would cause you to be unfair in this case knowing that this case involves a drug allegation?

MS. [R.]: My husband did time in prison for selling drugs.

[Prosecutor]: Okay. And do you feel that in your husband’s case, he was treated fairly or unfairly?

MS. [R.]: He was treated fairly.

[Prosecutor]: And was that some time ago, or was it recent?

MS. [R.]: Eight years ago.

[Prosecutor]: All right. So given that experience, could you be fair in this case?

MS. [R.]: Yes.

[Prosecutor]: Thank you. Is there anyone else in the back row, whether you, yourself, or a very close family member or friend who has been arrested for a drug crime?

(No response.)

[Prosecutor]: .... How about the second row here?

(Hands are raised.)

....

[Prosecutor]: So [Ms. S.] can you just give me a brief description of the circumstances?

MS. [S.]: My son, and it was possession.

[Prosecutor]: Okay. Do you feel your son was treated fairly or unfairly?

MS. [S.]: Unfairly.

[Prosecutor]: And was this a long time ago, or was this more recent?

MS. [S.]: Within the last couple of years.

[Prosecutor]: Okay. Now, given your personal experience with your son, do you think you would be able to be fair in this case?

MS. [S.]: Yes.

....

[Prosecutor]: .... Has anyone here, you, yourself personally, been charged with any crime?

(Hands are raised.)

[Prosecutor]: .... Mr. [G.] And so what were the circumstances of that?

MR. [G.]: I was young. It was like 35 years ago. I was in the Marines, and somebody hit me and I hit him back ....

....

MR. [G.]: .... It was like a really long time ago. It is the only time I have ever been arrested. He hit me and I hit him, and the charge was dropped ....

[Prosecutor]: I appreciate the answer.

MR. [G.]: I have to admit it, I have been arrested.

[Prosecutor]: So would that affect your ability to be fair?...

MR. [G.]: Not at all.

[Prosecutor]: Okay. Thank you. Anyone else who I missed who you, yourself, have been charged with a crime?

(No response.)

[Prosecutor]: I see no other hands. All right.... Is there anyone here who thinks that really drugs should be legalized, illegal drugs

...