State v. Patrick D. Zolliecoffer

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.
August 20, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1639-CR Cir. Ct. No. 2016CF4201

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PATRICK D. ZOLLIECOFFER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: WILLIAM S. POCAN, Judge. Affirmed in part; reversed in part and
cause remanded with directions.

Before Kessler, Brennan and Kloppenburg, JJ.

¶1 BRENNAN, J. Patrick D. Zolliecoffer seeks a new trial after his
convictions for disorderly conduct, battery to a law enforcement officer, and
attempted disarming of a peace officer. He contends on appeal that the trial court
No. 2018AP1639-CR

erred when it denied his motion to substitute counsel on the eve of trial and when
it denied his Batson1 motion challenging two of the State’s peremptory strikes as
racially based.

¶2 The State argues that Zolliecoffer is not entitled to a new trial. The
State argues the trial court properly exercised its discretion in denying
Zolliecoffer’s motion to substitute counsel because he made it the Friday before
the Monday start of trial, the case had been pending eight months, he had been
permitted to substitute counsel previously, and he had been granted adjournments
previously. The State notes that the trial court said the motion “appear[ed] to,
perhaps, be for the purpose of delay.” The State also argues that Zolliecoffer
offered no reason as to why he could not proceed with his assigned counsel. As to
his Batson challenge, the State concedes the trial court failed to make the factual
determinations that the Batson analysis requires. It argues that Zolliecoffer is
entitled to a remand for a hearing for the trial court to rule on the Batson
challenge.

¶3 For the following reasons, we conclude that the trial court did not
erroneously exercise its discretion when it denied Zolliecoffer’s motion for
substitution of counsel. We also conclude that the trial court erred in denying
Zolliecoffer’s Batson motion because it failed to apply the Batson analysis and
make the findings necessary to the application of that analysis. We must remand
for the trial court to do so because we are precluded from making findings of fact.
See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980)

1
Batson v. Kentucky, 476 U.S. 79, 89 (1986), held that the Equal Protection Clause
prohibits the State from striking a potential juror solely on the basis of race. It also established a
three-step analysis to be employed when a peremptory juror strike is challenged. Id. at 96-98.

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(holding that WIS. CONST. art. VII, § 5(3), “precludes [the court of appeals] from
making any factual determinations where the evidence is in dispute”). We
therefore affirm in part, reverse in part and remand for a hearing on the Batson
challenge.

BACKGROUND

¶4 After an altercation that occurred during and immediately after a
September 2016 proceeding in family court, Zolliecoffer was charged with
disorderly conduct, battery to a law enforcement officer, and attempting to disarm
a peace officer.

Counsel appointed to Zolliecoffer.

¶5 In December 2016, appointed counsel Attorney Kevin Gaertner
appeared at a status conference on behalf of Zolliecoffer.2 Trial was scheduled for
January 25, 2017. Attorney Gaertner requested a new trial date because he had not
yet received discovery. With no objection from the State, the trial court
rescheduled trial for March 1, 2017.

¶6 At the final pretrial hearing held on February 22, 2017, Zolliecoffer
indicated that he wanted to go to trial. Attorney Gaertner asked the trial court for
additional time to locate and question witnesses. The State did not object. The
trial court rescheduled trial for April 26, 2017.

2
Appointed counsel Attorney Anthony Procaccio had appeared with Zolliecoffer to
waive his right to a preliminary hearing. In November 2016, the trial court permitted Attorney
Procaccio to withdraw as counsel because he no longer worked for the State Public Defender’s
office, and Attorney Gaertner was appointed as replacement counsel.

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¶7 On February 24, 2017, Zolliecoffer moved the trial court through
counsel to permit Attorney Gaertner to withdraw as counsel. The motion stated
that there had been “a breakdown in communications” and that Zolliecoffer
requested new counsel.

¶8 At a hearing on the motion on March 3, 2017, the trial court stated
that because Zolliecoffer’s first appointed attorney had withdrawn due to a change
of employment, the trial court would treat Attorney Gaertner as Zolliecoffer’s first
attorney for purposes of the motion and that it was inclined to grant Zolliecoffer’s
request. The trial court then warned Zolliecoffer that it does not “allow multiple
change of attorneys.” The trial court stated that the next attorney “is going to be
[Zolliecoffer’s] last attorney in this case short of something very unusual
occurring.” The trial court added, “[I]f this issue comes with your next attorney, if
I grant your request, most likely, my answer next time will be, no.” After
confirming with Zolliecoffer that he wanted to have a new attorney appointed, the
trial court granted his request, and Attorney Jeremy Evans was appointed.

¶9 At a status conference on March 20, 2017, Attorney Evans requested
that the trial date be adjourned because he had not yet received discovery. With
no objection from the State, the trial court granted the request. Trial was
rescheduled for May 22, 2017.

¶10 On May 3, 2017, Zolliecoffer appeared with Attorney Evans at the
final pretrial hearing. The trial court confirmed that the parties were ready for the
May 22, 2017 trial.

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May 19, 2017 hearing on Zolliecoffer’s motion to substitute private counsel.

¶11 Through counsel, Zolliecoffer requested that the trial court set a
hearing on May 19, 2017, the Friday before the jury trial was scheduled to begin,
to hear his motion to permit Attorney Evans to withdraw and allow substitution of
private counsel.

¶12 Attorney Thomas Flanagan, who was present at the hearing,
informed the trial court that he had been retained by Zolliecoffer. Attorney
Flanagan stated to the trial court that he “would be ready to hit the ground
running” but said “Monday is a little bit soon[.]” Attorney Flanagan told the trial
court that he had understood that Monday, May 22, 2017, was a pretrial hearing
but then learned that it was the date of the jury trial. Attorney Flanagan further
stated that Zolliecoffer had informed him that he and Attorney Evans had “not
been able to communicate very well.” He stated that Zolliecoffer had wanted to
obtain private counsel but did not have the funds until that point. Additionally,
Attorney Flanagan stated that the State had indicated an intention to obtain a
statement from one of the defense’s witnesses it had not been aware of earlier.
Finally, Attorney Flanagan stated that he wanted to review the record further and
wanted to check on whether a transcript existed from the family court hearing.
Attorney Evans then informed the trial court that he had confirmed by going in
person to the courthouse that the September 12, 2016 hearing had not been
recorded and no transcript had been prepared.

¶13 The State indicated that it would not join in the defense’s request for
adjournment.

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¶14 Attorney Evans declined to make a statement regarding
Zolliecoffer’s request to obtain private counsel. Zolliecoffer was given an
opportunity but also declined to make a statement to the trial court.

¶15 The trial court stated that “if Mr. Flanagan was able to proceed with
the trial on Monday, [it] would be inclined to grant the request[.]” The trial court
noted that this was not the first time that the case had been rescheduled for trial
and that the case had been pending for eight months. The trial court further noted
that it was suspicious that the request for substitution of private counsel was being
done “for the purpose of delay,” and even if it wasn’t, it would result in delay.
The trial court denied Zolliecoffer’s request.

Jury Selection and Batson Challenge.

¶16 Jury selection began on May 22, 2017. Each party was given five
peremptory challenges.

¶17 During voir dire, both the State and defense counsel asked questions
concerning race and the jurors’ ability to remain impartial.

¶18 After the jury was selected by the parties, defense counsel stated he
“wish[ed] to bring a Batson challenge.” He stated, “All three African-American
jurors on the panel were struck. One was for cause. But the other two were struck
by the State. So I am raising the Batson [v.] Kentucky.”

¶19 The following exchange then occurred:

The court: I don’t think you are using it correctly. Batson
is a challenge to the voir dire in general. And, quite
frankly, I don’t even have the details how the 30 people
magically occurred in our courtroom. That’s done in Room
106. It is really not a Batson challenge. The basis of your
concern, and I know sometimes when we get to this point

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No. 2018AP1639-CR

sometimes the prosecutors wish to make a record as to why
they struck one or more of the jurors, but it is not really a
Batson challenge. But [prosecutor], do you wish to make
any sort of record?

[Prosecutor]: I would agree. Every time that challenge has
been brought up in the past it has always had to do with the
jury panel. To be honest with you, I have not marked on
my sheet who is African-American and who wasn’t. So by
process of elimination, Juror No. 18 for cause because the
defense mentioned [and] I can give reasons as to the other
two if there were two. I am saying race doesn’t matter. I
didn’t write down the race that I struck.

The court: What other two are you talking about, [defense
counsel]?

[Defense counsel]: Juror No. 1 and 21.

The court: All right. [Prosecutor], if you wish.

[Prosecutor]: As far as Juror No. 1, I had concerns about
her ability to understand. Perhaps communicate, but that
was one of my weaker strikes. Then No. 21 that came
down to having zero children and maybe not
understanding, you know, the things that go into child
support hearings all of that being a parent. Plus she had no
jury experience. Plus a factor was that she indicated she
knew people in law enforcement, and she had no criminal
justice—she had no criminal justice contacts. So definitely
with respect to those two it had nothing to do with their
race.

The court: All right. Thank you. Anything further from
your perspective, [defense counsel]?

[Defense counsel]: Juror[] No. 6, Juror No. 12, Juror
No. 14 and I believe No. 1, 16, and 17. They all had no
kids and therefore no experience. Many of them had no
experience with a jury. I don’t see why that particularly
disqualifies No. 21. I don’t see how No. 1 is particularly
disqualified. The State said it was one of his weaker
strikes.

¶20 The trial court then asked, “Do you have legal—other legal
arguments? It is not the Batson [challenge] that would be to the panel. If you
have legal authority you want me to consider, I will.” When defense counsel

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No. 2018AP1639-CR

stated, “I will just leave it at what I said,” the trial court concluded, “Then no legal
arguments have been made why the striking of Jurors 1 and 21 was in any way
improper. So then there is nothing[,] no action for the [c]ourt to take.”

Conviction and sentencing.

¶21 A jury found Zolliecoffer guilty on all three counts. The trial court
imposed and stayed a sentence and placed Zolliecoffer on three years of probation.
This appeal follows.

DISCUSSION

I. The trial court properly exercised its discretion in denying
Zolliecoffer’s motion to substitute counsel on the eve of trial.

Standard of review and relevant law.

¶22 Under the Sixth Amendment to the United States Constitution, “[t]he
[trial] [c]ourt must recognize a presumption in favor of petitioner’s counsel of
choice, but that presumption may be overcome[.]” Wheat v. United States, 486
U.S. 153, 164 (1988). “The evaluation of the facts and circumstances of each case
under this standard must be left primarily to the informed judgment of the trial
court.” Id. See also State v. Prineas, 2009 WI App 28, ¶14, 316 Wis. 2d 414, 766
N.W.2d 206. A trial court may not deny a defendant the right to retain counsel of
his choice “arbitrarily or unreasonably.” Carlson v. Jess, 526 F.3d 1018, 1024
(7th Cir. 2008). A trial court has discretion to decide motions that relate to the
substitution of counsel. Wheat, 486 U.S. at 162-64. See also State v. Lomax, 146
Wis. 2d 356, 359, 432 N.W.2d 89 (1988) (“Whether counsel should be relieved
and a new attorney appointed in his or her place is a matter within the trial court’s
discretion.”). A discretionary determination “must be the product of a rational

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No. 2018AP1639-CR

mental process by which the facts of record and law relied upon are stated and are
considered together for the purpose of achieving a reasoned and reasonable
determination.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

¶23 “Because trial courts have broad discretion on matters of
continuances, only an unreasoning and arbitrary insistence upon expeditiousness
in the face of a justifiable request for delay violates the right to the assistance of
counsel.” Carlson, 526 F.3d at 1025 (citations omitted). See also Prineas, 316
Wis. 2d 414, ¶15 (trial court cannot deny defendant a continuance “arbitrarily or
unreasonably”).

¶24 An appellate court “independently reviews whether deprivation of a
constitutional right has occurred.” State v. Jones, 2010 WI 72, ¶23, 326 Wis. 2d
380, 797 N.W.2d 378. In evaluating the trial court’s exercise of discretion, our
supreme court has set forth factors for the reviewing court to consider: the
sufficiency of the court’s inquiry into the defendant’s issue, the timeliness of the
motion, and whether the conflict between the defendant and counsel was so
significant that it was likely they could not communicate to the extent that
prevented an adequate defense. Lomax, 146 Wis. 2d at 359. Upon review we
determine whether the trial court considered relevant factors including the length
of the delay the defendant has requested, whether counsel is ready to try the case,
whether there have been previous delays, the convenience or lack thereof to the
parties and witnesses, and whether the delay seems legitimate or dilatory. Id. at
360.

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No. 2018AP1639-CR

A. The trial court properly exercised its discretion in denying
Zolliecoffer’s motion to substitute counsel because it was
untimely, his new counsel was unprepared to try the case,
and no record was made of conflict with his current attorney.

¶25 Zolliecoffer argues that the trial court “arbitrarily and unreasonably”
denied his motion for substitution of counsel and continuance, relying on Wheat’s
recognition of a presumption favoring the defendant’s choice of counsel. After
eight months of representation by attorneys appointed by the State Public
Defender’s Office, and after appearing with counsel for the final pretrial on
May 3, 2017, Zolliecoffer appeared in court on the Friday before the Monday set
for jury trial with recently retained counsel, Attorney Thomas Flanagan. Attorney
Flanagan informed the trial court that he had been retained just two days earlier,
that he was not told by Zolliecoffer that May 22, 2017, was the trial date, that he
was not prepared to try the case, that he wanted a continuance to see if he could
gather more evidence, and that Zolliecoffer wanted a new attorney because he and
his attorney “have not been able to communicate very well.” Despite the eleventh-
hour motion for substitution and delay, Zolliecoffer contends the trial court acted
“arbitrarily and unreasonably” because it did not honor the presumption in favor of
a defendant’s choice of counsel recognized in Wheat.

¶26 As Wheat itself held, the presumption in favor of the defendant’s
choice of counsel is not absolute but is considered in the context of other
competing factors. Wheat emphasized that “that presumption may be overcome”
and that “the evaluation of the facts and circumstances of each case under this
standard must be left primarily to the informed judgment of the trial court.” Id.,
486 U.S. at 164. Thus, a trial court’s ruling is to be analyzed as any exercise of
discretion by reviewing the trial court’s balancing of the reasons for the request
and the interests of effective judicial administration. See Lomax, 146 Wis. 2d at

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No. 2018AP1639-CR

360. Only if it was made “arbitrarily and unreasonably” is the denial of counsel of
choice and continuance an improper exercise of discretion. See Prineas, 316 Wis.
2d 414, ¶15.

¶27 The parties agree that this court is reviewing whether the trial court
appropriately exercised its discretion. Therefore we look first at the trial court’s
articulated reasons for denying the substitution motion. Here the trial court
addressed the factors outlined in Lomax, the length of delay and reasons for it, the
timeliness of the motion, the significance of the conflict between current counsel
and the defendant, judicial administrative concerns, and whether the delay seemed
legitimate or dilatory. It noted that Attorney Flanagan had stated that he thought
Monday’s jury trial date was “a pretrial hearing” and that he was not prepared to
try the case. The trial court said that if Attorney Flanagan could try the case on
Monday, it would be inclined to approve the substitution. But after noting that the
case had been pending already for eight months, the trial court said it was
concerned Zolliecoffer’s motion was made for the purposes of delay.

¶28 The trial court’s concerns about Zolliecoffer’s motives for the
motion were supported by the record. When Attorney Flanagan made the motion,
he asked for an unspecified length of delay for a vague purpose—to see if he could
find some more evidence. The closest he got to specifying why he needed the
delay is that he said he wanted to investigate whether a transcript existed of the
family court hearing before the court commissioner at which Zolliecoffer allegedly
engaged in the criminal conduct. He made no statement as to how that would
assist in Zolliecoffer’s defense at trial. Further, Attorney Evans then informed the
trial court that he had gone in person to request a transcript of the family court
hearing and had confirmed that the hearings were not recorded and no transcript
existed. Attorney Flanagan offered little or no explanation as to any conflict
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No. 2018AP1639-CR

between Zolliecoffer and his current lawyer. He said only that Zolliecoffer and his
current counsel “have not been able to communicate very well.”

¶29 Zolliecoffer compares these facts to those of Carlson, a Seventh
Circuit case that held that the trial court had erred because it “ignored the
presumption in favor of Carlson’s counsel of choice and insisted upon
expeditiousness for its own sake[.]” Id., 526 F.3d at 1027.

¶30 Carlson presented a very different situation. In that case, the trial
court had denied every request by the defendant for continuance and stated that the
orderly administration of the court was “paramount[.]” Further, the trial court
denied the defendant’s substitution request even though it was the first one the
defendant had made, and both the substitution and continuance requests were
supported with a detailed explanation from both current and new counsel. New
counsel told the court that there were unexplored factual and constitutional issues
and a need for an expert witness, and that current counsel’s failures to address
those in preparation for trial were troubling enough to “raise[] issues of ineffective
assistance of counsel[.]” See id. at 1020-21.

¶31 That was not the case here. The trial court had granted multiple
adjournments and had already granted Zolliecoffer’s first request for substitution
of counsel. In Carlson, the newly retained counsel raised in detail issues that
earlier counsel had failed entirely to investigate or research. Id. at 1021. In this
case, the only specific fact newly retained counsel told the court about was that he
wished to find out whether a transcript existed of the family court hearing.
Zolliecoffer’s counsel immediately informed the trial court that he had personally
confirmed that no such transcript was prepared.

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No. 2018AP1639-CR

¶32 Here, the trial court considered the facts in the record, applied the
proper law including the factors to be considered and reached a reasonable
conclusion supported by the record.3 We conclude that the trial court did not
erroneously exercise its discretion when it denied Zolliecoffer’s motion.

II. Zolliecoffer is entitled to remand for a hearing on his Batson
challenge because the trial court clearly erred by failing to apply
the proper law.

A. Standard of review.

¶33 The appropriate standard of review of the trial court’s application of
the Batson test is the clearly erroneous standard.4 State v. Lamon, 2003 WI 78,
¶37, 262 Wis. 2d 747, 664 N.W.2d 607. “[D]iscriminatory intent is a question of
fact decided by the circuit judge,” and therefore “a trial court’s conclusion on the
issue of discriminatory use of peremptory challenges at step three should be given
great deference.” Id., ¶41. Deference is given to the judgment of the trial court
because the judge “is in the best position to determine the credibility of the state’s
race-neutral explanations.” Id., ¶42. Therefore, “the issue of discriminatory intent
should not be overturned unless it is found that the determination was clearly
erroneous.” Id., ¶43.

3
A discretionary determination “must be the product of a rational mental process by
which the facts of record and law relied upon are stated and are considered together for the
purpose of achieving a reasoned and reasonable determination.” Hartung v. Hartung, 102
Wis. 2d 58, 66, 306 N.W.2d 16 (1981).
4
Zolliecoffer acknowledges “the controlling case law requiring this [c]ourt to conduct a
more deferential review.” He has preserved for review by our supreme court the argument that in
this case de novo review is warranted.

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No. 2018AP1639-CR

B. Analyzing a Batson challenge.

¶34 During jury selection, the peremptory challenge “allows parties to
strike a potential juror without a reason stated, without inquiry, and without being
subject to the court’s control.” Lamon, 262 Wis. 2d 747, ¶23. While the strike is
not constitutionally required, it is “essential to the fairness of trial by jury” because
the strike is used for the purpose of eliminating “extremes of partiality on both
sides and help[s] ensure that jurors will decide the case on the basis of the
evidence presented.” Id.

¶35 The Equal Protection Clause, however, “place[s] some limits on the
State’s exercise of peremptory challenges.” Batson v. Kentucky, 476 U.S. 79, 91
(1986). It forbids the prosecutor to use peremptory strikes of potential jurors
“solely on account of their race or on the assumption that black jurors as a group
will be unable impartially to consider the State’s case against a black defendant.”
Id. at 89. Therefore, the State may not use a peremptory strike to exclude blacks
from the jury for reasons that are unrelated to the outcome of the particular case at
trial. Id. at 91.

¶36 “[R]acial discrimination in the jury selection process harms three
distinct groups.” Lamon, 262 Wis. 2d 747, ¶35. First, “when racial
discrimination infects the jury selection process,” it harms the defendants. Id.
“Second, the rights of the excluded jurors are violated when they are denied the
opportunity to serve as jurors on account of race.” Id. Third, society is harmed
because the discriminatory practices “undermine public confidence in the fairness”
of our judicial system. Id.

¶37 The Batson court expressly stated that the rule applied to every part
of the jury selection process: “While decisions of this Court have been concerned

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No. 2018AP1639-CR

largely with discrimination during selection of the venire, the principles
announced there also forbid discrimination on account of race in selection of the
petit jury.” Batson, 476 U.S. at 88. “Since the Fourteenth Amendment protects
an accused throughout the proceedings bringing him to justice, the State may not
draw up its jury lists pursuant to neutral procedures but then resort to
discrimination at “other stages in the selection process[.]” Id. (citations omitted).

¶38 Wisconsin has adopted the three-step analysis established in Batson
“for determining if a prosecutor’s peremptory strikes violated the Equal Protection
Clause.” Lamon, 262 Wis. 2d 747, ¶¶22, 27.

¶39 First, the defendant must establish “a prima facie case of purposeful
discrimination in selection of the petit jury” and need only rely “on evidence
concerning the prosecutor’s exercise of peremptory challenges at the defendant’s
trial.” Batson, 476 U.S. at 96. “[T]he defendant first must show that he is a
member of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s
race.” Id. (citation omitted). The defendant is entitled to use, as evidence, the
undisputed fact that peremptory challenges can be used during jury selection as a
discriminatory tactic. Id. Additionally, the defendant must show that the
prosecutor’s use of the strike was used “to exclude the veniremen from the petit
jury on account of their race.” Id.

¶40 “In deciding whether the defendant has made the requisite showing,
the trial court should consider all relevant circumstances,” such as “a ‘pattern’ of
strikes against black jurors” and “the prosecutor’s questions and statements during
voir dire.” Id. at 96-97. The court in Batson expressed confidence in the trial
judge’s experience in supervising voir dire and ability to determine “if the

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circumstances concerning the prosecutor’s use of peremptory challenges creates a
prima facie case of discrimination against black jurors.” Id. at 97.

¶41 Second, once the defendant has made a prima facie case for
discrimination, “the burden shifts to the State to come forward with a neutral
explanation for challenging black jurors.” Id. While “the prosecutor’s
explanation need not rise to the level justifying exercise of a challenge for cause,”
the explanation must be more than a denial of having a discriminatory motive or
that the use of the strike was made in good faith. Id. at 98. “The prosecutor
therefore must articulate a neutral explanation related to the particular case to be
tried.” Id.

¶42 Third, the trial court “then will have the duty to determine if the
defendant has established purposeful discrimination.” Id. At this point, the
“defendant may show that the reasons proffered by the State are pretexts for racial
discrimination.” Lamon, 262 Wis. 2d 747, ¶32.

¶43 To prevail on a Batson challenge, the defendant must show “[p]roof
of racially discriminatory intent or purpose.” Lamon, 262 Wis. 2d 747, ¶34. It is
not enough that “there is a racially discriminatory or a disparate impact” as a result
of the use of a peremptory strike. Id.

C. The trial court’s failure to conduct the Batson analysis
constituted clear error.

¶44 Zolliecoffer argues that “the circuit court’s inquiry in response to
defense counsel’s assertion of a Batson violation during jury selection was
superficially insufficient” and that it “flatly stat[ed] that defense counsel had erred
by citing Batson[.]” The State concedes that “the circuit court declined to apply
the three-step Batson procedure” and instead told Zolliecoffer that “he was

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employing the wrong law in support of his claim.” The State takes no position on
the merits of the challenge because, it argues, “the record is insufficient to do so.”

¶45 We agree with Zolliecoffer and the State that the trial court
committed clear error when it failed to apply the correct analysis to the Batson
challenge, which is set forth in Lamon. Because it rejected the defense challenge
outright, the trial court did not make the findings of fact necessary to a legal ruling
on the Batson challenge. The United States Supreme Court has made clear that
“the trial court has a pivotal role in evaluating Batson claims” as they require
“evaluation of the prosecutor’s credibility,” and “the demeanor” of both the
prosecutor and the challenged juror. Snyder v. Louisiana, 552 U.S. 472, 477
(2008) (citation omitted). It “recognized that these determinations of credibility
and demeanor lie ‘peculiarly within a trial judge’s province[.]’” Id. (citation
omitted).

¶46 We therefore conclude that the trial court’s failure in this case to
make the needed findings constitutes clear error.

D. Zolliecoffer is entitled to remand for a hearing on his Batson
challenge.

¶47 Zolliecoffer argues that this court is not required by any controlling
case to remand for a Batson hearing, and that we can, based on the record,
conclude that a clear Batson violation occurred and remand for a new trial
“consistent with other case law.” He cites three cases in which a reviewing court
granted a new trial based on the record notwithstanding the trial court’s failure to
make adequate findings of fact. In Snyder, the United States Supreme Court
addressed a Batson challenge in which “the trial judge was given two explanations
for the strike,” defense counsel disputed both, and “[r]ather than making a specific

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finding on the record concerning [the juror’s] demeanor, the trial judge simply
allowed the challenge without explanation.” Id., 552 U.S. at 479. The Court
examined both of the proffered explanations—that the juror appeared “nervous”
and that the juror had expressed concern about jury duty conflicting with his job.
Id. at 478. The Court observed that, given the absence of a finding concerning the
juror’s demeanor, the trial court may have “bas[ed] his ruling completely on the
second proffered justification for the strike.” Id. at 479. The record showed that
more than fifty prospective jurors had expressed concern about job conflicts. Id.
at 480. It concluded that “In this case … the explanation given for the strike of
[the juror] is by itself unconvincing and suffices for the determination that there
was Batson error.” Snyder, 552 U.S. at 479. See also McGahee v. Alabama
Dep’t of Corrs., 560 F.3d 1252, 1270 (11th Cir. 2009) (holding that the “record …
compels a finding that the State’s use of a peremptory strike in this case …
constituted intentional discrimination”), and U.S. v. Alanis, 335 F.3d 965, 969 (9th
Cir. 2003) (holding that the trial court “would have concluded that the
prosecutor’s gender-neutral explanations were pretexts for purposeful
discrimination” if it had “properly proceed[ed] to step three [of the Batson
analysis]”).

¶48 Zolliecoffer acknowledges that reviewing courts do not always grant
new trials and that in other Batson challenge cases where insufficient factual
findings have been made, appellate courts have remanded for the trial court to
make the necessary findings and conclusions of law. He argues this court can
conclude that a Batson violation occurred in light of “the straightforward nature of
the issues presented and the clarity of the appellate record,” and that the
appropriate remedy is a new trial.

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No. 2018AP1639-CR

¶49 The State argues that the correct remedy for the trial court’s failure
to conduct the Batson analysis in this case is a remand with instructions to the trial
court to conduct the analysis. It points to this court’s holding in State v. Cole,
2008 WI App 178, ¶¶43-44, 315 Wis. 2d 75, 762 N.W.2d 711, which reversed a
trial court ruling denying a suppression motion on the grounds that the trial court
had applied an incorrect burden of proof. There, we concluded that we were
“unable to resolve this appeal as a matter of law by applying the correct burden of
proof to the record before us” and remanded for the trial court to apply the proper
law. Id., ¶43.

¶50 The parties both cite Lamon as supporting their opposing positions
on the correct way for an appellate court to proceed where a trial court has failed
to make factual findings necessary to a Batson analysis. In Lamon, our supreme
court affirmed a trial court’s denial of a Batson challenge where the trial court had
permitted the juror to be struck “but did not elaborate on its decision.” Lamon,
262 Wis. 2d 747, ¶16.

¶51 Zolliecoffer argues that the majority in Lamon “engaged in a
searching review of the record in order to assess the adequacy of the prosecutor’s
explanation for his actions” despite the trial court’s failure to articulate findings of
fact. The Lamon court concluded that “[t]he record in this case supports the
circuit court’s decision to allow [the prosecutor’s] peremptory strike to stand.”
Id., ¶38. Zolliecoffer argues that this means that “when the proffered reasons can
be explored on the basis of the record before the [c]ourt, a remand will not be
required,” and a reviewing court can decide based on the record itself, even
without factual findings, whether a Batson violation occurred. He argues that in
this case, the record shows a clear Batson violation, and this court should so find.

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No. 2018AP1639-CR

¶52 The State argues that the takeaway from Lamon is that even the
dissenters did not grant the defendant the new trial she sought and instead would
have remanded for a “proper Batson hearing.” See Lamon, 262 Wis. 2d 747, ¶99
(Abrahamson, C.J., dissenting). It focuses on the fact that the majority upheld the
trial court’s decision denying the defendant’s Batson claim, and “the dissent
suggested that when a trial court errs in its application of the three-step process,
remand is the proper avenue.” In other words, the majority left unanswered what
the remedy should be when a reviewing court concludes that the lower court has
failed entirely to apply the correct framework. Lamon had sought a new trial on
the grounds that the trial court erred when it denied her Batson challenge. Lamon,
262 Wis. 2d 747, ¶18. However, the three dissenting justices who agreed that the
trial court “made no findings of fact and reached no conclusions of law relevant to
the Batson inquiry” concluded that “the decision in the present case cannot be
properly reviewed and the case must be remanded” for “a proper Batson hearing.”
Lamon, 262 Wis. 2d 747, ¶¶99, 109-10 (Abrahamson, C.J., dissenting) (emphasis
added); Id., ¶¶131, 139 (Bradley, J., dissenting, joined by Sykes, J.).

¶53 We recognize that Snyder illustrates that where a record makes clear
that a Batson violation has occurred, a reviewing court is not precluded from so
holding. However, in this case we address a situation in which the trial court
stated to counsel that his peremptory strike challenge “is not really a Batson
challenge.” It stated, “There is nothing, no action for the court to take.” The trial
court short-circuited the creation of a record we could review. The State did not
assert the correct legal standard either although the prosecutor added that he had
race-neutral reasons for the two disputed strikes. Where the record reflects a
complete failure to apply the correct law and make any findings of fact, this court
cannot make a finding that Zolliecoffer has proved “racially discriminatory intent

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No. 2018AP1639-CR

or purpose” by the State, and such a finding is necessary to sustain a Batson
challenge. See Lamon, 262 Wis. 2d 747, ¶34.

¶54 While the writings of the dissenting justices in Lamon are not
precedential, it is notable that the justices who agreed that the trial court had erred
by failing to conduct the analysis did not therefore conclude that the record proved
a Batson violation and warranted a new trial. The Lamon majority addressed a
different question and did not address what a court should do in the event that it
concluded, as we do, that the trial court had erred by failing entirely to conduct the
Batson analysis.

¶55 We remand to the trial court with instructions to make the necessary
findings of fact and rule on whether a Batson violation occurred during the petit
jury selection. See id., 476 U.S. at 88 (“While decisions of this Court have been
concerned largely with discrimination during selection of the venire, the principles
announced there also forbid discrimination on account of race in selection of the
petit jury.”). If the trial court determines that a Batson violation occurred, it shall
vacate Zolliecoffer’s conviction and grant a new trial. If the trial court determines
that there was no Batson violation, the judgment of conviction will stand.

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.

Not recommended for publication in the official reports.

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