State v. Lamon
| Decision Date | 02 July 2003 |
| Docket Number | No. 00-3403-CR.,00-3403-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Nancy R. LAMON, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis.
For the plaintiff-respondent the cause was argued by Mary E. Burke, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
Nancy R. Lamon (Lamon) seeks review of a court of appeals' decision that affirmed the circuit court's finding that the State's peremptory strike of a potential juror was not in violation of the test established under Batson v. Kentucky, 476 U.S. 79, 96-98 (1986).
¶ 2. We affirm the decision of the court of appeals. We give deference to the circuit court's decision based on the standard set forth in Hernandez, and hold that clearly erroneous is the correct standard of review in this case. Hernandez v. New York, 500 U.S. 352, 364 (1991). We hold that the decision of the circuit court was not clearly erroneous under Batson, because the State offered sufficient evidence for its race-neutral justification.
¶ 3. The facts are undisputed. Leeman Jones (Jones), an African-American, was driving home around 1:00 or 1:30 a.m. on May 31, 1998, when Nancy R. Lamon (Lamon) flagged him down. She expressed the need to be taken to a telephone and got into Jones' car. Jones began driving, but stopped the car upon Lamon's statement that her friend was in a car behind them. Jones stopped the car and the person in that car approached Jones' window and asked for Jones' wallet while Lamon threatened Jones with an object on his right side. Jones complied and his money was taken from his wallet. Lamon exited Jones' car and entered her friend's car.
¶ 4. On June 3, 1998, a complaint was filed in Rock County Circuit Court charging Lamon with violating Wis. Stat. § 943.32(1)(b) & (2)1 (). The complaint also alleged Lamon was a repeater as defined in Wis. Stat. § 939.62(1)(c).
¶ 5. On June 30, 1998, Lamon entered a plea of not guilty. Lamon then entered a motion to dismiss, claiming lack of probable cause at the preliminary hearing. The circuit court denied the motion finding that there was sufficient evidence for Jones to have had a reasonable belief that he was threatened by a weapon.
¶ 6. On April 14, 1999, jury selection for Lamon's trial began. Twenty out of 35 possible jurors were called and seated in the jury box; one of which was Mr. Dondre Bell (Bell). Bell was the only African-American in the jury pool. The circuit court questioned the venire first. Bell did not respond affirmatively to any of these questions, although others did answer yes and were asked follow-up questions.
¶ 7. The court asked the potential jurors the following questions:
¶ 8. Assistant District Attorney Jodi Dabson Bollendorf (Bollendorf) then conducted a general voir dire of the venire. Bell did not respond affirmatively to any of these questions, but other potential jurors answered yes to some of the questions. Specifically, Bollendorf asked:
¶ 9. Bollendorf then asked if anyone was acquainted with or knew of people involved in the incident.2 Moreover, Bollendorf asked if anyone would have difficulty determining guilt or innocence based on the reasonable doubt standard, or whether they believed the standard should be different. Finally, Bollendorf asked whether there was any reason why a juror may not be able to sit in judgment of another. ¶ 10. Defense counsel, Jeffery Livingston (Livingston), then conducted his voir dire. None of the prospective jurors responded to the following questions:
¶ 11. The attorneys then exercised their peremptory strikes. Out of the presence of the jury Livingston challenged Bollendorf's peremptory strike of Bell. Livingston made a Batson challenge, asking for a race-neutral explanation of the strike, on grounds that the defendant was African-American, and the prosecutor struck the only African-American on the panel. Livingston also pointed out that the victim appeared to be approximately the same age and the same race as the juror who was struck.
¶ 12. The circuit court noted that Bell was the only African-American juror and noted that Bollendorf did not ask individual questions. The circuit court then asked Bollendorf for a reason for her peremptory strike. ¶ 13. Bollendorf responded giving several reasons for her strike. First, Bollendorf said that her office and the federal prosecutor have prosecuted a number of Bells who live in Beloit through the years, and it is a well-known criminal name in Beloit. Next, Bollendorf pointed out that Bell's address is in a high crime area in Beloit and that the State obtained police reports evidencing police contacts at that address. These contacts, according to Bollendorf, ranged from civil processes to stolen vehicles. Bollendorf argued that Bell in the venire may be related to the people at that address, and that there was a number of police contacts at Bell's address, yet Bell did not answer the State's question regarding contact with their office or with law enforcement officers. Bollendorf also argued that Bell's juror card listed his employment as "varies."
¶ 14. In response to the prosecutor's answers, Livingston said that Bell is a fairly common name; Bell did not respond to the question about family members dealing with the district attorney's office; and Bollendorf did not question Bell individually as to whether he was related to the Bell family involved in criminal activity. Livingston also stated that the police contacts at Bell's address were mostly civil in nature, and that Bollendorf did not inquire individually into Bell's residence at that address. Livingston argued that Bollendorf could have asked Bell questions about these circumstances individually, and asked the court to individually voir dire Bell.
¶ 15. Bollendorf argued that Exhibit 1, the exhibit listing police contacts at Bell's address, clearly shows contacts with people named Bell. Bollendorf reiterated her concern that Bell was not completely forthright and honest as a prospective juror, because he did not answer the questions about whether a relative had been convicted or the victim of a crime. This question was important because there was an incident at Bell's address where a "Mrs. Bell" reported her husband stole the car for purposes of supporting a drug habit. Bollendorf asserted that a lack of response from Bell the first time indicated he may not respond forthrightly with further voir dire, and the State didn't want to appear to single him out.
¶ 16. The circuit court found that Bollendorf had just cause for the peremptory strike, but did not elaborate on its decision. As a result Bollendorf's peremptory strike was allowed to stand.
¶ 17. At trial, the jury found Lamon guilty of armed robbery on April 15, 1999. On May 24, 1999, Lamon pled guilty to the charge of repeat offender and was sentenced to an indeterminate prison term not to exceed 20 years.
¶ 18. Lamon filed a post-conviction motion for a new trial on the grounds that the State's reasons offered for the peremptory challenge were not sufficient justifications. The circuit court, Honorable Daniel T. Dillon presiding, denied the motion on November 20, 2000, finding, inter alia, that it was reasonable for Bollendorf to conclude Bell was being less than candid in not mentioning these police contacts in which the victim presumably resided at the Bell residence.
¶ 19. The circuit court also determined that it was not necessary for the State to question Bell in front of the other jurors in order to prove the reason for the strike.
¶ 20. Lamon appealed and on April 4, 2002, the court of appeals held...
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