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No.                                                                           95-2280-CR
                                                                              STATE OF WISCONSIN                                                 IN COURT OF APPEALS
                                                                                                                                                 DISTRICT II
                                                                              STATE OF WISCONSIN,
                                                                                                              Plaintiff-Respondent,
                                                                              v.                                                                 ERRATA SHEET
                                                                              LYNN H. MICKLE,
                                                                                                              Defendant-Appellant.
Marilyn L. Graves                                                                                             Peg Carlson
Clerk of Court of Appeals                                                                                     Chief Staff Attorney
231 East, State Capitol                                                                                       119 Martin Luther King Blvd.
Madison, WI                                                                   53702                           Madison, WI   53703
                                                                              Court of Appeals-District I     Court of Appeals-District II
                                                                              633 West Wisconsin Avenue       2727 N. Grandview Blvd.
Milwaukee, WI                                                                 53203                           Waukesha, WI    53188-1672
                                                                              Court of Appeals-District III   Court of Appeals-District IV
740 Third Street                                                                                              119 Martin Luther King Blvd.
Wausau, WI    54401-6292                                                                                      Madison, WI   53703
Jennifer Krapf                                                                                                Hon. Joseph E. Wimmer
Administrative Assistant                                                                                      515 W. Moreland Blvd.
                                                                              119 Martin Luther King Blvd.    Waukesha, WI   53188
Madison, WI   53703
                                                                                                              Kevin M. Osborne
Eileen A. Hirsch                                                                                              Asst District Attorney
                                                                              Asst State Public Defender      515 W. Moreland Blvd.
P.O. Box 7862                                                                                                 Waukesha, WI 53188
Madison, WI   53707-7862
PLEASE  TAKE                                                                  NOTICE                          that  the  attached  opinion  is   to                    be
substituted for the above-captioned opinion which was released on March 27,
1996.
Dated this 3 day of December, 2006.




COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
March 27, 1996
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   95-2280-CR
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT II
STATE OF WISCONSIN,
                                                                                     Plaintiff-Respondent,
v.
LYNN H. MICKLE,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Waukesha
County:  JOSEPH E. WIMMER, Judge.  Affirmed.
NETTESHEIM, J.                                                                       Lynn   H.   Mickle   appeals   from   a
judgment of conviction for disorderly conduct pursuant to § 947.01, STATS.1  The
issue on appeal is whether the State improperly struck four male members from
the jury pool in violation of Mickle's equal protection rights.   We conclude that
1  Mickle was convicted as a repeat offender pursuant to § 939.62(1)(a), STATS.




No.                                                                                    95-2280-CR
the State's strikes were gender neutral and did not otherwise demonstrate
purposeful discrimination.
Before we recite the facts, we set out some introductory law on the
subject.   In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held
that the Equal Protection Clause of the Fourteenth Amendment forbids the state
from challenging potential jurors on the basis of race.   In J.E.B. v. Alabama ex
rel. T.B.,  511 U.S.  ___,  ___,  114 S. Ct.  1419,  1422  (1994), the Supreme Court
extended the Batson principle to juror strikes based on gender.  See also State v.
Joe C., 186 Wis.2d 580, 585, 522 N.W.2d 222, 224 (Ct. App. 1994).   We will later
address the methodology by which a trial court applies these principles.
The facts are undisputed.   Mickle was charged with disorderly
conduct and battery as the result of an alleged domestic abuse incident.   When
making  its  four  peremptory  strikes,  the  State  struck  four  males.    Mickle
immediately objected.  We set out the prosecutor's initial response in detail:
Judge, the reasons I struck those jurors was when I was looking at
them they didn't make eye contact with me, and I
tried to—I know none of them admitted to being
involved in batteries or anything like that but when I
looked at them to me they looked like individuals
who  would  use  violence  against  their  kids  or—I
mean, I am just speculating as I sit there and try to
guess what they are like at home.  I had—That is one
of the reasons I struck the jurors as I did; and in my
last selection, Judge, I almost struck Anne Konczal.   I
was debating.   To me it was like eenie-meenie-miine
mo as I was sitting here.   I was going eenie-meenie-
miine-mo and I ended up picking Richard LaBar.   It
was between him and Anne Konczal.   It was those
two I wanted to strike, but I don't know if you saw
me waving my pen but I was going eenie-meenie-
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No.                                                                                 95-2280-CR
miine mo and it landed on Richard LaBar as the
person to strike.
Really, everybody in the panel was good for me.   I didn't really
know who to strike.
The trial court then asked the prosecutor whether the strikes were
gender based.  The prosecutor responded:
No sir  but I basically looked at those people and I said who
would—who seems to be involved in violence in the
home, and I could not see any of that in any of the
women's eyes but I saw it in the four men that I
selected.
The trial court then overruled Mickle's objection, stating,  “The
Court does not believe that [the prosecutor] intentionally struck the four people
that he struck because of the fact that they were males .”
Mickle then pursued his objection further, contending that there
was nothing about the appearances of the four struck jurors which supported
the prosecutor's stated reasons for taking the strikes.    Confirming its prior
ruling, the trial court responded:
The court notes that at times jurors are selected based upon merely
hunches and that [the prosecutor] has indicated that
as strictly a hunch he noticed that certain persons
looked  wrong  to  him,  not  based  on  gender  but
looked—but based upon their facial expressions and
furthermore based upon the fact that they did not
have  eye  contact  with  him;  and  furthermore  [the
prosecutor]  has  explained  that  the  last  juror  was
actually selected based on an actual eenie-meenie-
miine  mo  process  and  that  therefore  that  was
between a lady and a man and just so happened that
the man ended up being the person eliminated.
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No.                                                                                  95-2280-CR
Application of the Batson principles involves a three-step process.
First, the defendant must make a prima facie showing that the prosecutor has
exercised peremptory challenges on the basis of gender.   See Batson, 476 U.S. at
96-97.   Second, if the requisite showing has been made, the burden shifts to the
prosecutor to articulate a gender-neutral explanation for striking the jurors in
question.   See id. at 97-98.   Third, the trial court must determine whether the
defendant has carried his or her burden of proving purposeful discrimination.
Id. at 98.
However, where the prosecutor initially defends the use of the
peremptory strikes without any prompting or inquiry from the trial court, the
first Batson step is eliminated.  Hernandez v. New York, 500 U.S. 352, 359 (1991).
Therefore, in this case, we are concerned with the second and third steps of the
Batson methodology.
Next, we address our standard of review.   The parties correctly
agree that the third step of the Batson analysis—whether the state's strikes
constituted  purposeful  discrimination—presents  a  question  of  fact.     See
Hernandez, 500 U.S. at 364; see also State v. Davidson, 166 Wis.2d 35, 41-42, 479
N.W.2d 181, 183-84 (Ct. App. 1991).   However, Mickle contends that the second
step—assessing whether the prosecutor's explanation for the strikes represents a
gender-neutral basis—is a question of law.   The State contends that the issue is
one of fact governed by the clearly erroneous standard of review.
The State correctly notes that State v. Lopez, 173 Wis.2d 724, 729,
496 N.W.2d 617, 619 (Ct. App. 1992), states that the clearly erroneous standard
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No.                                                                                           95-2280-CR
applies to each of the Batson steps.   Nonetheless, we agree with Mickle on this
dispute.   We do so for three reasons.   First, we note that the Lopez court never
reached the second step of the Batson analysis because the court concluded that
the defendant had not satisfied his burden on the first step.   See Lopez, 173
Wis.2d at 731, 496 N.W.2d at 620.  Second, it does not appear from the context of
the Lopez decision that the standard of review was in dispute.   Third, and most
importantly, when stating that the clearly erroneous standard of review applied
to all the Batson factors, the Lopez court relied on language of Hernandez which
pertained to the third step of the Batson analysis, not the second step.   Lopez, 173
Wis.2d at 729, 496 N.W.2d at 619.   For these reasons, we construe the Lopez
decision, insofar as it pertains to the second step of the Batson analysis, as dicta.
We  agree  with  Mickle  that  the  question posed by  the second
Batson step is one of law.   We base this conclusion on the following language
from  Hernandez:                                                                              “In  evaluating  the   [gender]  neutrality  of  an  attorney's
explanation, a court must determine whether, assuming the proffered reasons
for  the  peremptory  challenges  are  true,  the  challenges  violate  the  Equal
Protection Clause as a matter of law.”   Hernandez,  500 U.S. at  359  (emphasis
added).   Moreover, when applying this second Batson step, the trial court does
not assess the credibility of the prosecutor.   “A neutral explanation  means an
explanation based on something other than the [sex] of the juror.   At this step of
the inquiry, the issue is the facial validity of the prosecutor's explanation.”  Hernandez,
500 U.S. at 360 (emphasis added).
Rather,  the  credibility  assessment  of  the  prosecutor's  gender-
neutral explanation is left for the third step—assessing whether the gender-
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No.                                                                                           95-2280-CR
neutral basis for the exercise of the peremptory challenges shows purposeful
discrimination.   As we have already noted, the parties correctly agree that this
involves a finding of fact by the trial court.  See id. at 364.
Our conclusion that the second Batson step presents a question of
law is in keeping with well-established Wisconsin law which holds that the
application  of  a  given  set  of  facts  to  a  constitutional  principle  presents  a
question  of  law  for  independent  appellate  review.                                       “[T]his  court  may
independently review the facts   to determine whether any constitutional
principles have been offended.”   State v. Clappes,  136 Wis.2d  222,  235,  401
N.W.2d 759, 765 (1987).
We now assess the second Batson step—whether the prosecutor's
explanation  constituted, on its face and  taking it  as true, a gender-neutral
explanation for the peremptory strikes—as a question of law.   We will then
move  to  the  third  step  to  determine  whether  the  explanation  nonetheless
constitutes purposeful discrimination.2
Mickle contends that the prosecutor's reason for striking the four
male jurors was not gender neutral because it “reflects the stereotype that men
are more violent than women, and men are more likely than women to be
aggressor in violence against women and children.”   Strikes premised on such
stereotypes are improper.                                                                     “We shall not accept as a defense to gender-based
2   Our research has not indicated whether the trial court must nonetheless move to the
third Baston step if the prosecutor fails to provide a gender-neutral explanation for the
strikes.   Regardless, it would seem that the defendant has carried the burden on the third
step as a matter of law if the prosecutor's explanation fails the second step.
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No.                                                                                    95-2280-CR
peremptory challenges ‘the very stereotype the law condemns.’”  J.E.B., 511 U.S.
at ___, 114 S. Ct. at 1426 (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)).
However,  we  do  not  read  the  prosecutor's  explanation  as
excluding women per se as persons capable of violence.   Rather, the prosecutor
eye-balled the jurors in this case and picked up certain vibes or sensations which,
while  difficult  to  verbalize,  prompted  his  jury  selection  decisions.     The
prosecutor said, “I could not see any of that in any of the women's eyes but I
saw it in the four men that I selected.”   This explanation portends that had the
prosecutor picked up similar sensations from female jurors, he would have
struck such jurors.   Thus, taking the prosecutor's reasons as true, they represent
a gender-neutral statement for the strikes.
We  therefore  move  to  the  third  Batson  step—whether  the
prosecutor's  gender-neutral  explanation  nonetheless  represents  purposeful
discrimination.    As  we  have  noted,  the  parties  properly  agree  that  this
presented a finding of fact for the trial court which we review under the clearly
erroneous standard of review.
In conducting this reivew, we properly bear in mind the words of
Hernandez:
There will seldom be much evidence bearing on [this] 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.
Hernandez, 500 U.S. at 365 (quoted source omitted).
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No.                                                                                    95-2280-CR
Mickle contends that the prosecutor gave only vague, confusing
and contradictory explanations for the peremptory challenges.   We disagree.
While the prosecutor's statement may not have been artfully stated, the message
was nonetheless conveyed.   We do not see this explanation as “implausible or
fantastic” such that we can label it a pretext.   See Purkett v. Elem, 514 U.S. ___,
___, 115 S. Ct. 1769, 1771 (1995).
Mickle  also  faults  the  trial  court  for  not  walking  through  the
Batson methodology step by step.  As such, Mickle concludes that the court did
not understand what Batson requires.   We note, however, that while Mickle's
counsel properly raised a Batson objection, neither did he lay out the Batson
methodology for the benefit of the trial court.   Nor did Mickle's counsel ever
complain that the court had not fully performed a Batson analysis.
Moreover, although the trial court's ruling was not elaborate, we
conclude  that  the  court's remarks satisfied  the  Batson  inquiry.    The  court
accepted the prosecutor's explanation for the strikes, a statement which we
construe as the court's acceptance of the prosecutor's credibility.   In addition,
the court explained that the reasons for the strikes were based not on the gender
of the jurors but on the perceptions and nuances which the prosecutor sensed
during the jury selection process.  We do not see Batson as requiring more.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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