State v. Anderson, 2010AP2599–CR.

• Decision Date: 10 May 2012
• Docket Number: No. 2010AP2599–CR.,2010AP2599–CR.
• Citation: 342 Wis.2d 248,816 N.W.2d 350,2012 WI App 73
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jerry L. ANDERSON, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

342 Wis.2d 248

816 N.W.2d 350

2012 WI App 73

STATE of Wisconsin, Plaintiff–Respondent,

v.Jerry L. ANDERSON, Defendant–Appellant.

No. 2010AP2599–CR.

Court of Appeals of Wisconsin.

May 10, 2012.

OPINION TEXT STARTS HEREAppeal from an order of the circuit court for Dane County: Patrick J. Fiedler, Judge. Affirmed.

Before LUNDSTEN, P.J., VERGERONT and SHERMAN, JJ.¶ 1PER CURIAM.

Jerry Anderson appeals an order denying his pro se postconviction motions seeking a new trial. Anderson contends that: (1) minorities were excluded from the jury pool, violating Anderson's constitutional rights; (2) the record is defective, denying Anderson the right to fully present his arguments on appeal; (3) a detective, who testified for the State, bribed the victim by placing money into her account in jail and then falsely testified that the money came from an agency; (4) the circuit court failed to provide a particularized ruling as to each of Anderson's claims; (5) the circuit court erred by relying on irrelevant and improper criteria at sentencing; (6) the prosecutor engaged in misconduct by pursuing charges against Anderson despite inconsistencies in witness testimony; and (7) Anderson's trial counsel was ineffective.¹ We reject these contentions, and affirm.

BACKGROUND

¶ 2 Anderson was convicted, following a jury trial, of false imprisonment, strangulation and suffocation, second-degree recklessly endangering safety, four counts of battery, and felony bail-jumping. Anderson moved for postconviction relief, claiming discriminatory jury selection, prosecutorial misconduct, ineffective assistance of counsel, inconsistent statements by witnesses, insufficiency of the evidence, and improper sentencing. Anderson also moved to correct the record, claiming errors in the transcript. Following a hearing, the circuit court denied Anderson postconviction relief and found that there was no basis to correct the record. Anderson appeals.

DISCUSSION

Jury Pool

¶ 3 Anderson contends that African–Americans were excluded from his jury pool, violating his constitutional rights. Anderson cites Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), for the proposition that systematic exclusion of a distinct group from jury pools violates the constitutional requirement that the jury represent a fair cross-section of this community. Anderson asserts that Dane County systematically excludes African–Americans from jury pools by using randomized lists of drivers' licenses and state identifications from the Department of Transportation to select potential jurors, resulting in the absence of African–Americans available for his jury. He argues that it has been established that this system results in an underrepresentation of minorities on juries, and asserts that Dane County's continued use of a system known to result in underrepresentation is systematic exclusion. We disagree.

¶ 4 The constitution requires that the “ ‘jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.’ ” Id. at 363–64 (citation omitted). Thus, to establish a prima facie violation of the right to a representative jury, a defendant must show that: (1) the excluded group is a distinctive group in the community; (2) representation of the group in jury pools is not fair and reasonable in relation to the number of the people in that group in the community; and (3) the underrepresentation is due to systematic exclusion in the jury-selection process. Id. at 364. The problem with Anderson's argument is that he has not established the third part of the test, that the underrepresentation of African–Americans in his jury pool was due to systematic exclusion in the jury process. While systematic exclusion may be established by showing exclusion over time, see Brown v. State, 58 Wis.2d 158, 165, 205 N.W.2d 566 (1973), Anderson merely asserts, without support, that juries in Dane County have been underrepresentative of minorities for years. The burden to prove underrepresentation over time is on the defendant, see id., and Anderson has not made that showing here.

Record

¶ 5 Anderson contends that the record is defective, denying him the opportunity to fully present his arguments on appeal. He contends that statements that were made at trial were not recorded in the transcript, and that a letter from his trial counsel confirmed that fact. However, the letter to Anderson from his trial counsel states only that counsel remembers the investigating detective testifying that she placed money in the victim's jail account, and that statement should be in the trial transcript. The detective's statement that she placed money in the victim's jail account appears in the trial transcript. To the extent that Anderson is asserting other statements are missing from the transcript or that the transcript is otherwise defective, we have no basis to disturb the circuit court's finding that the transcript was accurately prepared, as certified by the court reporter. See State v. DeLeon, 127 Wis.2d 74, 82, 377 N.W.2d 635 (Ct.App.1985) (explaining that review of circuit court factual findings as to dispute over transcript is reviewed under clearly erroneous standard).

Witness Bribery

¶ 6 Anderson contends that the detective bribed the victim by placing money into her account in jail and then falsely testified that the money came from an agency. However, the detective testified that she placed money into the victim's jail account to cover necessities, explaining that it was her experience that victims were better able to focus on upcoming trials when they had necessities. She also stated that she helped the victim locate housing through an agency. At the postconviction motion hearing, the detective again explained her action in providing money to the victim. The circuit court found the detective credible. We discern no basis to disturb the circuit court's order as to this issue. See State v. Plank, 2005 WI App 109, ¶ 11, 282 Wis.2d 522, 699 N.W.2d 235 (explaining that it is the role of the circuit court to determine witness credibility).

Particularized Ruling

¶ 7 Anderson contends that the circuit court failed to provide a particularized ruling as to each of Anderson's claims. However, the circuit court order states that it is based on “the reasons stated on the record” at the postconviction motion hearing. At the postconviction motion hearing, the circuit court provided detailed...