State v. Walker
| Citation | 453 N.W.2d 127,154 Wis.2d 158 |
| Decision Date | 02 April 1990 |
| Docket Number | No. 88-2058-CR,88-2058-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Lionel D. WALKER, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant.
Christopher G. Wren, Asst. Atty. Gen., argued, and Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.
This case is before this court on certification from the court of appeals pursuant to sec. (Rule) 809.61., Stats. The defendant-appellant Lionel D. Walker (Walker) appeals from a judgment of conviction and an order denying his motion for post-conviction relief of the circuit court for Kenosha county, Judge Jerold W. Breitenbach.
Walker, who is black, raises three issues on appeal. First, Walker contends that he was denied his federal and state constitutional right to effective assistance of counsel because his counsel did not object when the prosecutor used a peremptory challenge to exclude the only black person from the petit jury. Second, Walker claims he was denied his federal and state constitutional right to effective assistance of counsel when his counsel failed to move to suppress lineup and in-court identifications as the forbidden fruits of an allegedly unlawful arrest. Third, Walker argues that the circuit court erred in refusing to admit evidence concerning a crime that occurred when he was incarcerated and that he claims was similar to those for which he was on trial.
We first conclude that Walker has established, prima facie, that the prosecutor used a peremptory challenge in a racially discriminatory manner during the jury selection process at his trial, that the prosecutor's explanation for the challenge was not sufficient to rebut the prima facie case, and that, as a result, Walker's conviction must be reversed and he is entitled to a new trial. We further conclude that Walker's arrest was unlawful and that, on remand, the circuit court must determine whether the lineup identification evidence must be suppressed as the fruit of the unlawful arrest. If the circuit court determines that the lineup evidence should be suppressed as the fruit of the unlawful arrest, then the court must determine whether any in-court identification must be suppressed. We finally conclude that the circuit court did not err in excluding evidence concerning a crime that occurred while Walker was incarcerated.
We begin by setting forth the facts relevant to the issues raised by Walker. Between August 27, 1986 and September 1, 1986, armed robberies, which were executed in similar fashion, occurred in four city of Kenosha taverns: Jesse's Bar, V.J.'s Lounge, Friar Pub Tavern, and the Kenosha Tap. In all four cases, a black man entered the tavern, ordered Old Style beer, and then, speaking quietly, told the bartender to give him the money from the cash register. In each case, the man held his right arm inside his outer garment to create the appearance that he had a gun and departed immediately after receiving the money. All four robberies occurred in either the late evening or early morning hours, prior to the tavern's closing.
On September 4, 1986, at approximately 9:15 p.m., Walker was arrested in the fenced-in backyard of his home. 1 The arrest was made without a warrant. The next morning Walker, who was a suspect in the four above-mentioned armed robberies, was placed in a lineup consisting of six black males. 2 The eyewitness to the robbery at Jesse's Bar positively identified Walker. The eyewitness to the robbery at V.J.'s Lounge made a tentative identification of Walker, as did the eyewitness to the Friar Pub Tavern robbery. Two eyewitnesses to the Kenosha Tap robbery viewed the lineup. One eyewitness was unable to identify anyone, while the other positively identified Walker.
On September 25, 1986, a criminal complaint was filed, charging Walker with four counts of armed robbery. Prior to trial, Walker's counsel filed two motions that are relevant to the arguments Walker raises on appeal. First, on September 30, 1986, Walker's counsel filed a motion to dismiss the action on the ground that the court lacked jurisdiction because Walker was brought before the court pursuant to an illegal arrest. The circuit court denied the motion to dismiss, citing State v. Smith, 131 Wis.2d 220, 388 N.W.2d 601 (1986), in which this court held that an illegal arrest would no longer deprive the court of personal jurisdiction over the defendant. Second, on November 7, 1986, Walker's counsel filed a motion to suppress evidence with respect to lineup, photographic, and in-court identifications of Walker on the ground that any such identification would violate multiple federal and state constitutional rights. Walker's counsel orally withdrew this motion at a December 5, 1986 hearing, explaining, in part, as follows:
I have realized that since I made the motion, that Mr. Walker was represented by an attorney from the Public Defender's Office ... at the line-up, and ... no objections as to police procedures ... were made by her at that time.... I don't ... have any independent evidence at this time to support my burden ... [with respect to] that motion.... If there would be any information between now and then gathered until the time of trial, I would renew it, but at this time I am not aware of any.
The jury was selected for Walker's trial on December 15, 1986. Of the twenty venirepersons, one was black. During the voir dire examination of potential jurors, the black venireperson did not answer in a way that would suggest a disqualifying attitude to any general questions directed at the pool of jurors by the judge or by the lawyers, nor did the court or counsel ask the black venireperson any specific questions. Because only twelve people ultimately would serve as jurors at Walker's trial, the prosecutor and defense counsel each were allowed to use peremptory challenges to eliminate four venirepersons from the pool of twenty. With the third of his four peremptory challenges, the prosecutor eliminated the black venireperson. Defense counsel did not object.
Walker's three-day jury trial on the four counts of armed robbery commenced on December 15, 1986. During its case-in-chief, the prosecution introduced lineup evidence from all five eyewitnesses, and each eyewitness made an in-court identification of Walker as the perpetrator of the crime that each had observed. In addition, evidence that two eyewitnesses had identified Walker at Walker's preliminary examination was also introduced by the prosecution.
The theory of defense was that the four armed robberies in question had been committed by someone else, Walker having been misidentified as the perpetrator. In an effort to prove that theory, Walker introduced evidence about two armed robberies that occurred while he was incarcerated pending his trial for the four armed robberies in question. These two armed robberies were similar to the four for which Walker was standing trial. However, the circuit court prevented Walker from introducing evidence about an armed robbery that was also similar in some respects to the crimes for which Walker had been charged and that also occurred when Walker was incarcerated. According to Walker's offer of proof, which consisted of the police reports concerning that armed robbery the perpetrator was a black male with light skin tone and liver spots on his face. The trial judge excluded evidence about this crime because no eyewitnesses to the crimes for which Walker had been charged had described the perpetrator as having light skin tone and liver spots.
At the conclusion of the trial, the jury found Walker guilty of all four counts of armed robbery in violation of sec. 943.32(1)(b)(2), Stats. On January 28, 1987, the circuit court sentenced Walker to ninety-nine years imprisonment, as a repeater.
On July 11, 1988, Walker filed a post-conviction motion, alleging that he was denied his state and federal constitutional right to effective assistance of counsel. Walker asserted that his trial counsel was ineffective in two respects. First, Walker claimed that trial counsel was ineffective because he failed to make a Batson 3 objection when the prosecutor used a peremptory challenge to remove the only black person from the venire. Second, Walker alleged trial counsel was ineffective because he did not attempt to suppress lineup and in-court identification evidence as the fruit of his allegedly unlawful arrest.
A hearing was held on the post-conviction motion on September 29, 1988, at which Walker's trial counsel testified. With respect to his failure to make a Batson objection, trial counsel testified that prior to trial Walker had expressed reservations about being tried by an all-white jury and that Walker wanted blacks on the jury. Trial counsel testified that he would not have used a peremptory challenge to strike the only black person from the venire. According to trial counsel, at the time of trial, he was unaware of the relatively recent Batson decision, which placed limitations on the prosecution's ability to eliminate venirepersons of defendant's race with peremptory challenges. Trial counsel stated that he should have known about the Batson decision. He would have made a proper objection when the prosecutor used a peremptory challenge to eliminate the only black venireperson, trial counsel testified, had he known about the Batson decision. Walker, himself, apparently had knowledge of the Batson decision. Trial counsel testified that Walker informed him that the prosecutor's use of a peremptory challenge to exclude from the petit jury the only black venireperson may have been unlawful in light of a newspaper article Walker had read about the Batson decision.
With respect to his failure to attempt to suppress the lineup and the in-court identification evidence, trial counsel testified that he knew at trial that...
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