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COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                          97-1509-CR
Complete Title
of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT L. KING,
DEFENDANT-APPELLANT.
Opinion Filed:                                                     November 26, 1997
Submitted on Briefs:                                               October 2, 1997
Oral Argument:
JUDGES:                                                            Eich, C.J., Dykman, P.J., and Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                         On behalf of the defendant-appellant, the cause was submitted on the
briefs of Glenn L. Cushing, Assistant State Public Defender.
Respondent
ATTORNEYS:                                                         On behalf of the plaintiff-respondent, the cause was submitted on the brief
of James E. Doyle, Attorney General, and Sharon Ruhly, Assistant
Attorney General.




COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
November 26, 1997
A party may file with the Supreme Court a
                                                                                     Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                     Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                     of Wisconsin              STATS.
No.                                                                                  97-1509-CR
                                                                                     STATE OF WISCONSIN        IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT L. KING,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Rock County:
JOHN W. ROETHE, Judge.  Reversed and cause remanded.
Before Eich, C.J., Dykman, P.J., and Vergeront, J.
VERGERONT, J.      Robert King appeals his conviction of one count
of second-degree sexual assault of a child, contrary to § 948.02(2), STATS.   He
contends that the trial court erred when it ruled that the prosecutor’s peremptory
strikes of older females during voir dire did not violate King’s right under the




No. 97-1509-CR
Equal Protection Clause of the United States and Wisconsin Constitutions.   We
agree and, therefore, reverse the conviction and remand the case for a new trial.
BACKGROUND
King was charged with having sexual intercourse with a person who
had not yet attained the age of sixteen years.   After voir dire of the jury, the parties
made their peremptory strikes.   Defense counsel challenged the prosecutor’s use of
two of the four peremptory strikes against the only two African-American jurors
on the  panel of  twenty-one.    Defense  counsel argued that the  defendant was
African-American  and  accused  of  assaulting  a  white  victim,  and  under  these
circumstances  striking  the  only  two  African-Americans  from  the  panel  was
impermissible.   The prosecutor denied that race was a factor and offered to explain
the reasons for her strikes, and the court permitted her to do so.
PROSECUTOR:   The first strike by the State was Jennie
Lou Moore.   I struck her because she is a retired female,
and similarly that was the reason I made the third strike,
that Lula Thomas who is also a retired female.   She is an
African American juror.    My experience in trying these
cases is that older females are very judgmental of sexual
assault victims who is a female, and when the jury panel
was picked I marked on my sheet all of the people who are
retired and I specifically marked those who were female
and   retired   because   my   experience   indicated   those
individuals are not favorable for the State on these type of
cases, so that is why I struck juror number - well, my first
strike and my third strike - was the reason for those strikes.
THE COURT:   All right.
PROSECUTOR:   My second strike was Larry McGlasson.
I struck him because of the fact that the had a significant lie
told by his child….
The fourth strike was Francine Blanden. She is an African
American.   As I heard her name being called and wrote her
on my chart before I saw her face and knew she was an
African  American,  I  immediately  marked  her  as  being
someone I would potentially strike because of the fact she
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No. 97-1509-CR
is  a  media  aid,  and  my  office  has  come  under  intense
scrutiny in  the  media.…    So  that  is  the  reason  for  my
strikes.
Defense  counsel  immediately  objected  on  the  ground  that  the
prosecutor “basically indicates that she struck retired females.   Gender is no more
permissible a reason than race.”   The court ruled that the strikes were permissible:
That’s not for gender; that’s for attitude that she
attributes to these people.   I’m not going to get down the
road of interfering with peremptory strikes absent a clear
discriminatory intent.   I accept Ms. Jones’ explanation.   I
believe that people selecting jurors have to have some basis
for following their instincts as to who will be a favorable
juror to them, but I don’t believe that race and gender are
permissible  matters  to  be  considered.    I  think  that  Ms.
Jones’ explanations do not show any type of discriminatory
attempt and I don’t believe they’re protectural [sic] either.
I did note when Ms. Blanden was selected to come up here
that Ms. Jones did make that note on her pad, and the Court
saw that before she even saw who the juror was.   And so I
don’t believe that test [sic] explanations were protectural.
Additionally, I don’t think that the explanation needs to rise
to the level we have been exercising for challenge of cause.
In short, I don’t believe Batson requires that an attorney
leave their [sic] instincts at home about who is a fair juror
to them and to their position….
DISCUSSION
Purposeful racial and gender discrimination in selection of the venire
violates a litigant’s right to equal protection because it denies the protection that a
trial by jury is intended to secure.     Batson v. Kentucky, 476 U.S. 79, 86 (1986).
See J.E.B. v. Alabama, 511 U.S. 127 (1994).   In J.E.B. the court held that the
Equal Protection Clause forbids intentional discrimination on the basis of gender
just  as  it  prohibits  discrimination  on  the  basis  of  race.                        Id.  at   144-45.
Discrimination   based on gender in jury selection includes selection based on the
assumption that an individual will be biased in a particular case for no reason other
than the fact that the person happens to be a woman or happens to be a man.  Id.
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No. 97-1509-CR
This court has concluded that the three-step Batson analysis, which
the  Supreme  Court  originally developed to  test for  racial discrimination,  also
applies in gender discrimination.   State v. Jagodinsky, 209 Wis.2d 577, 580, 563
N.W.2d 188, 189 (Ct. App.1997) (citing State v. Joe C., 186 Wis.2d 580, 585, 522
N.W.2d 222, 224 (Ct. App. 1994)).   As with race-based Batson claims, a party
alleging gender discrimination must first make a prima facie showing that the
prohibited factor was relied on in exercising the peremptory strike.   Id.   Second,
once this showing is made, the burden shifts to the party exercising the strike to
provide a race-neutral or gender-neutral explanation for the selections.   Id.   Third,
the court must evaluate both sides and reach an ultimate finding of whether the
party alleging discrimination met the burden of proving purposeful discrimination.
Id.   This court has also held that deference is owed to the trial court’s conclusions
on the Batson three-prong test and we will not reverse these findings unless they
are clearly erroneous.   See id. at 580 (citing State v. Lopez, 173 Wis.2d 724, 729,
496 N.W.2d 617, 619 (Ct. App. 1992)).1
1    King argues that the deferential standard is incorrect with respect to the second Batson
step, that our ruling on this point in State v. Lopez, 173 Wis.2d 724, 729, 496 N.W.2d 617, 619
(Ct. App. 1992), was dicta, and that we should use a de novo standard on the second step.   The
reason we decided in Lopez   to employ the “clearly erroneous” standard at each step in the
Batson   analysis is that the question of discriminatory intent is largely informed by the trial
judge’s perceptions at voir dire.  Lopez, 173 Wis.2d at 729, 496 N.W.2d at 619.  We acknowledge
that the issue presented on this appeal, as we define it later in this opinion, does not depend for its
resolution on competing inferences from the evidence or the trial court perceptions and may be
described as purely a question of law.   However, we will not modify our decision in Lopez
because we are bound by our published decisions and may not overrule, modify or withdraw
language from them.   Cook v. Cook, 208 Wis.2d 166, 189-90, 560 N.W.2d 246, 256 (1997).   In
addition, we observe that the standard of review would not affect the outcome in this case
because the trial court’s determination fails the stricter clearly erroneous standard.
4




No. 97-1509-CR
On  appeal,  King  argues  that  the  prosecutor  violated  his  equal
protection  rights  when  she  purposefully  struck  older  females2  from  the  jury
because gender is a prohibited basis on which to strike a juror.   The State presents
two arguments in response.   First, because the trial court never ruled that King
made  a  prima  facie  showing  of  purposeful  racial  discrimination,  this  court’s
analysis  should  go  no  further  and  we  should  disregard  the  prosecutor’s
explanation,  which  included  the  statement  about  gender.    Second,  if  we  do
consider  the  gender  claim,  we  should  conclude  there  was  no  impermissible
discrimination  because  when  the  prosecutor  struck  Moore  and  Thomas  she
considered  age  in  addition  to  gender,  and  age,  a  permissible  factor,  was  the
decisive factor.
We  disagree  that  we  should  confine  our  analysis  to  the  initial
challenge based on race.   After defense counsel raised the Batson challenge based
on race, and explained her position, the court gave the prosecutor the opportunity
to respond.   The prosecutor did not argue that King had not established a prima
facie case but, without prompting or a specific inquiry from the trial court, she
immediately offered to explain the non-discriminatory reasons for the strikes, and
the court permitted her to do so.3
2    The prosecutor used both “older” and “retired.”  Both parties interpret the prosecutor’s
reference to “retired” as signifying “older” rather than unemployed status.   We agree with this
interpretation and use “older” instead of “retired.”
3    After the defense counsel raised and explained the race-based Batson challenge, the
trial court simply stated:                                                                         “Miss Jones [prosecutor].”  The prosecutor immediately responded:
Judge, I can assure the Court I did not strike those
individuals because of their race.   I struck them for other
reasons. I don’t know if it’s the appropriate time to go into
the testimony as to my reason for striking them.    I can
make a brief record if the Court wishes.
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No. 97-1509-CR
When   the   prosecutor   offers   a   race-neutral   explanation   for
peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant made a
prima facie showing becomes moot.   See Hernandez v. New York, 500 U.S. 352,
359 (1991).   Since the prosecutor here did not argue to the trial court that King had
not  established  a  prima  facie  case  for  a  race-based  challenge,  but  offered
immediately to provide race-neutral reasons, there was no need for the trial court
to rule on whether a prima facie case had been met.   The trial court’s failure to do
so was not improper, and does not prevent us, the reviewing court, from moving to
the second step of the Batson analysis.   See id.
In this case, the reasons offered by the prosecutor to rebut the claim
of racial discrimination included an affirmative and unequivocal statement that she
struck two of the four jurors because they were older females.   The State argues
that we should disregard this statement because there was no prima facie showing
of discrimination based on gender.   However, if we move to the second step of the
Batson analysis when the prosecutor provides a race-neutral explanation rather
than first challenging the prima facie showing, see Hernandez, 500 U.S. at 359,
we see no logical reason, and no requirement in the case law, for returning to the
first  step  of  the  Batson  analysis  for  the  gender  challenge  under  these
circumstances—when the prosecutor, unprompted, has stated that gender was a
factor  in  two  of  the  strikes  and  the  defense  objects  to  those  two  strikes  as
discrimination based on gender.   Moreover, were we to start with an analysis of
the  prima  facie  showing  for  the  gender  claim,  we  would  not  disregard  the
prosecutor’s statement about her reasons for striking jurors Moore and Thomas.
The court stated that it would like a brief record, and the prosecutor presented her reasons for the
four strikes, as we have already quoted, supra.
6




No. 97-1509-CR
Taking that into account, we would conclude that the defendant established a
prima facie case of gender discrimination.   The prosecutor’s statement prompted
the gender discrimination claim and her statement would be properly considered
as part of the prima facie showing.    In Jagodinsky, in a similar situation, we
considered the prosecutor’s acknowledgment of taking gender into account as
“plain evidence” of gender discrimination in analyzing the prima facie showing.
Jagodinsky, 209 Wis.2d at 583, 563 N.W.2d at 191.
In  Jagodinsky,  the  defendant  was  charged  with  violating  an
injunction that prohibited him from having any contact with his former girlfriend.
Jagodinsky,  209  Wis.2d  at  579,  563  N.W.2d  at  189.    During  voir  dire,  the
prosecutor used all four of his peremptory strikes to remove men from the venire.
Id.   Jagodinsky objected, claiming that the prosecutor’s peremptory strikes were
based on gender and asserting that he had established a prima facie case.   Id. at
581, 563 N.W.2d at 190.   The court asked the prosecutor to explain why each
individual was stricken.    Id.    The prosecutor acknowledged that he considered
gender, but claimed that his selections were “not based upon gender alone,” that
other factors motivated his decision, such as education and employment.   Id.   The
trial court found that the mere fact that the prosecution used its four strikes to
strike all males did not establish a prima facie case of discrimination and that it
was accepting the prosecutor’s explanations that he had used “other rationales”
when making his four strikes.   Id. at 582, 563 N.W.2d at 190.
On appeal, we determined that Jagodinsky had established a prima
facie case because the defendant was male, a member of a cognizable group under
J.E.B., and the prosecutor used every peremptory challenge to remove members
of this group.                                                                          “Even if this were not enough,” we stated, “the trial court heard the
prosecutor admit that he used gender.   Hence the court faced plain evidence of
7




No. 97-1509-CR
gender discrimination.”    Jagodinsky,  209 Wis.2d at  583,  563 N.W.2d at  191.
Instead of remanding the matter for the trial court to complete the Batson analysis,
we analyzed the second Batson prong, because the prosecutor had provided an
explanation and we therefore had the necessary record.   Id.
As in Jagodinsky, the prosecutor’s statement here is plain evidence
of gender discrimination.   Therefore, whether we start with the first step, as we did
in Jagodinsky, or go immediately to the second step, as is permissible under
Hernandez, we arrive at the second step in the analysis on the gender claim.   We
turn to that now.
We  observe  at  the  outset  that  the  prosecutor’s  unprompted
statements on gender frames the second step of the Batson analysis on the gender
claim in a very particular way.   The trial court was not confronted with the typical
second step question of whether the prosecutor’s explanation was gender neutral,
because the prosecutor had clearly stated that gender was one of two factors (the
other being age) for striking jurors Moore and Thomas.4   Nor did the trial court
have to decide whether age was a pretext, because defense counsel did not claim
that  it  was.    Rather,  King’s  contention  below,  and  on  appeal,  is  that  it  is
impermissible to base a peremptory strike on gender even if there is an additional
legitimate reason for striking that person.
4    The trial court’s reason for deciding there was no purposeful discrimination based on
gender is not entirely clear.   Its comments could be interpreted as deciding that gender was not a
factor in the prosecutor’s two strikes, or that attributing characteristics to a juror because of her
gender is not the same as a purposeful strike based on gender.   However, the State does not take
either of these two positions.    We interpret the trial court’s ruling to be that there was no
purposeful discrimination based on gender in the strikes of Moore and Thomas because age was
also a factor.   This is the State’s interpretation, although the State also asserts that the trial court
implicitly found that age was the decisive of the two factors.   We have difficulty deriving that
from the trial court’s decision, but whether the trial court did or did not make an implicit finding
on the decisive factor does not affect our decision.
8




No. 97-1509-CR
The State acknowledges that gender was a factor and that gender is
not a valid reason for striking a juror.    However, it argues that age is a valid
reason5 and, since there were two reasons, we should adopt the “dual motivation
test” to determine whether to allow these strikes.    Under the dual motivation
analysis, the party who exercised the strike must prove that the strike would have
been  exercised  regardless  of  the  discriminatory  motivation.    See  Wallace  v.
Morrison, 87 F.3d 1271, 1275 (11th Cir. 1996).   Under this analysis, a prohibited
factor,  such  as  gender,  does  not  automatically  result  in  an  equal  protection
violation.   If there are other permissible motivating factors, the prohibited factor
must be the decisive part of the motive.   See Howard v. Senkowski, 986 F.2d 24,
27  (2nd  Cir.                                                                                        1993).    Although  some  federal  circuits  have  adopted  the  dual
motivation analysis,6 the Supreme Court has not ruled on this issue.
We agree with King that in Jagodinsky this court rejected essentially
the same argument, although it was not denominated “dual motivation.”   When we
analyzed the second Batson step in Jagodinsky, we first addressed the State’s
argument that the prosecutor’s admission that he used gender did not establish that
he engaged in gender discrimination because he did not rely on “gender alone.”
Jagodinsky,  209 Wis.2d at  583,  563 N.W.2d at  191.    We acknowledged this
language  from  J.E.B.,  which  the  State  in  this  case  also  points  to:                         “‘Our
conclusion that litigants may not strike potential jurors solely on the basis of
5    The State cites a number of federal decisions holding that removing a juror because of
age is not a violation of the equal protection clause.  United States v. Clemens, 941 F.2d 321, 325
(5th Cir. 1991).   See also United States v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993); United
States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987).   We assume without deciding that age is a
permissible reason.
6    See e.g., James v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995); United States v. Darden,
70 F.3d 1507, 1531 (8th Cir. 1995); and United States v. Tokars, 95 F.3d 1520, 1533 (11th Cir.
1996), cert. denied, 117 S. Ct. 1328 (1997).
9




No. 97-1509-CR
gender does not employ the elimination of all peremptory challenges, id. (quoting
J.E.B., 511 U.S. at 143) (emphasis added).’”   However, we concluded that this
statement, read in context, did not support the State’s argument.   We stated:             “In
circumstances  such  as  this,  where  the  challenged  party  admits  reliance  on  a
prohibited discriminatory characteristic, we do not see how a response that other
factors were also used is sufficient rebuttal under the second prong of Batson.”
Id. at 583-84, 563 N.W.2d at 191.
The State argues that adopting the dual motivation test does not
conflict with Jagodinsky because we did not need to reach the dual motivation
analysis in Jagodinsky.   The State contends that in Jagodinsky, “the prosecutor
never offered dual motives, but merely denied gender-based motives.”   We do not
agree with this characterization of either the prosecution’s remark in Jagodinsky
or our decision.   The prosecutor did not merely deny gender-based motives but
denied  that  gender  was  the  sole  basis  for  selection  because  there  were  other
factors,  such  as  education  and  employment.7     We  interpreted  this  as  an
acknowledgment  that  gender  was  a  factor,  although  not  the  only  one.    The
prosecutor in this case, as in Jagodinsky, clearly stated that gender was a factor,
but that there was another—age.   Although the term “dual motivation” was not
used in Jagodinsky, we did there interpret Batson and J.E.B. to preclude striking
a  juror  based  on  a  prohibited  characteristic,  even  if  other  non-prohibited
7    These were the prosecutor’s comments in Jagodinsky:
‘[My selections were] not based upon gender alone….   To say
gender isn’t an issue would be a lie to the Court, but there are a
lot of other things, education, employment.   And considerations
such as those are also in the back of my mind when I pick a
jury.’
State v. Jagodinsky, 209 Wis.2d 577, 581, 563 N.W.2d 188, 190 (Ct. App. 1997).
10




No. 97-1509-CR
characteristics were also used.   This court is bound by its previously published
decisions.    We  may  not  overrule,  modify  or  withdraw  language  from  those
opinions.   Cook v. Cook, 208 Wis.2d 166, 190, 560 N.W.2d 246, 256 (1997).
It is true, as the State points out, that the prosecutor in this case
explained the non-gender reason for striking jurors Moore and Thomas in more
detail than did the prosecutor in Jagodinsky.   And we did, in Jagodinsky, discuss
the lack of specificity as an alternative reason for concluding that the prosecutor
failed the second Batson prong.   Id. at 584-85, 563 N.W.2d at 191-92.   However,
this alternative  basis for our ruling does not permit us to ignore our express
rejection  of  the                                                                       “not  solely  based  on  gender”  justification.    When  a  court
intentionally takes up, discusses, and decides a question germane to, though not
necessarily decisive of, the controversy, such decision is not dictum but a judicial
act of the court that is thereafter binding.   See State v. Kruse, 101 Wis.2d 387,
392, 305 N.W.2d 85, 88 (1981).
We  hold  that  the  trial  court  erred  when  it  concluded  that  the
prosecutor  had  not  purposefully  engaged  in  gender  discrimination  in  striking
jurors Moore and Thomas.   Based on the prosecutor’s statement that she struck
these two jurors because they were older females and  “older females are very
judgmental of  sexual assault victims who is  [sic] a female,” the  only correct
conclusion on this record is that the prosecutor purposefully used gender as a basis
for striking these two jurors.   The prosecutor stated that she marked all the retired
people, she specifically marked the retired females, and that is why she struck
Moore and Thomas.    Following our holding in Jagodinsky, we conclude this
constitutes a violation of the equal protection clause.    The only remedy is to
reverse the conviction and remand for a new trial.   See Jagodinsky, 209 Wis.2d at
11




No. 97-1509-CR
585,  563 N.W.2d at  192  (quoting State v. Walker,  154 Wis.2d  158,  179,  453
N.W.2d 127, 136 (1990)).
By the Court.—Judgment reversed and cause remanded.
12

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