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State v. Sanders

Court of Appeals of Wisconsin, District II

August 7, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Malcolm J. Sanders, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Kenosha County: No. 2016CF677 BRUCE E. SCHROEDER, Judge.

          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 ...

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