State v. Robert A. Marchese

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 2, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP626-CR Cir. Ct. No. 2018CF753

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT A. MARCHESE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
MARY KAY WAGNER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP626-CR

¶1 PER CURIAM. Robert A. Marchese appeals from a judgment of
conviction entered after a jury found him guilty of two counts of first-degree
recklessly endangering safety, use of a dangerous weapon. He claims the Equal
Protection Clauses of the United States Constitution and Wisconsin Constitution
were violated when the prosecutor used one of his peremptory challenges to strike
from the jury panel the only African-American potential juror. Because the trial
court’s finding that the prosecutor did not engage in purposeful discrimination is
not clearly erroneous, we conclude there was no equal protection violation. We
affirm.

BACKGROUND

¶2 The State charged Marchese with three counts of first-degree
recklessly endangering safety, use of a dangerous weapon, after Marchese and
some members of a rival gang exchanged gunfire from their cars. Marchese took
his case to a jury trial. The jury convicted him of two of the three counts. Of
importance to this case, the prosecutor used one of his peremptory strikes to
eliminate from the jury panel the only African-American potential juror, S.B.1

¶3 After voir dire concluded, the trial court asked the prosecutor to
explain why he had stricken S.B. The prosecutor offered two reasons: first, S.B.
had a prior criminal record with the Kenosha County District Attorney’s office,
having been prosecuted for some unspecified offenses in 2004 and 2009. Second,
the prosecutor asserted that the court officer, Detective Brian Wilson, told him that
when Wilson was introduced during voir dire, S.B. gave the detective “a very—

1
We refer to the jurors and potential jurors only by their initials to protect their privacy.

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No. 2021AP626-CR

negative look.” The detective agreed with the prosecutor’s characterization,
explaining to the court that the look S.B. had given the detective was not “a
pleasant look.” The prosecutor said that this gave him “some concern, since
[Detective Wilson] is my court officer and the lead detective on the case,” and he
did not “want a juror” who reacted negatively to law enforcement, particularly due
to Wilson’s central role in investigating the allegations against Marchese.

¶4 Marchese moved for a mistrial. He argued that the State had not
provided a sufficient, non-race-based reason for striking S.B. Accordingly, he
asserted that the State engaged in purposeful discrimination in violation of
Batson2 and a mistrial was warranted. The trial court disagreed. It found that the
State “expressed an unbiased reason” for striking S.B. and that the reasons
provided were “valid.”

¶5 Marchese then filed a formal motion for a mistrial with the court,
renewing his Batson challenge. In support, Marchese argued that the State had
stricken S.B. based on his race as evidenced by the fact that the State had not
stricken G.M., a white woman who also had a criminal history in Kenosha County.
Marchese also contended that it was inappropriate and potentially discriminatory
for the State to exercise a strike based on “facial expressions” without first asking
the potential juror individual questions.

¶6 The State responded by stating that it had a limited number of
peremptory strikes and therefore could not strike every potential juror that it may
have wanted. The State also offered additional, nondiscriminatory reasons for

2
Batson v. Kentucky, 476 U.S. 79 (1986).

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No. 2021AP626-CR

keeping G.M. on the jury, including that G.M. stated on voir dire that she owns a
gun. The State explained that it considered gun ownership important in selecting
jurors because its presentation of the case involved technical firearm evidence and
several other potential jurors indicated a sense of discomfort around the firearm
topic.

¶7 Regarding the State’s explanation for striking S.B. based in part on
the negative expression he made toward the detective, the prosecutor stated that he
did not want to question S.B. in front of other prospective jurors because of the
potential that S.B. could poison the jury pool based on S.B.’s negative opinions of
law enforcement.

¶8 After hearing arguments from both parties, the trial court confirmed
its finding that “the State has met its burden” of offering a valid,
nondiscriminatory reason for striking S.B. The trial court heard and observed the
entire jury selection. It also heard and found credible Wilson’s description and
perception of the look. The court found the prosecutor’s explanations for striking
S.B. valid and denied Marchese’s motion. Marchese appeals.

DISCUSSION

¶9 A defendant’s challenge to the State’s use of its peremptory strikes
must first establish a prima facie case that the prosecutor exercised the strikes with
discriminatory intent. See State v. Lamon, 2003 WI 78, ¶¶27-28, 262 Wis. 2d
747, 664 N.W.2d 607. The burden then shifts to the prosecutor to state a neutral
explanation for the strikes. See id., ¶29. If the prosecutor offers a neutral
explanation, the trial court must determine whether the defendant has established
purposeful discrimination. See id., ¶32.

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No. 2021AP626-CR

¶10 The parties generally agree that the first two prongs of the test were
met. Thus, their dispute on appeal is focused on the third prong; namely, whether
the prosecutor’s reasons were persuasive and plausible to the trial court.

¶11 Marchese argues that the trial court’s finding that the State did not
engage in purposeful discrimination in striking S.B. is clearly erroneous. He
asserts that although the State’s reasons “appear to be facially race-neutral, in truth
[they] are clear to be pretexts for unlawful racial discrimination.”

¶12 Marchese contends that the prosecutor’s stated reasons were not
plausible under the facts of this case. He states that the first reason regarding
S.B.’s criminal record is “plainly ridiculous” and the second reason regarding the
“unpleasant look” is a pretext because the prosecutor did not individually question
S.B. regarding the look. Accordingly, Marchese argues, the State did not
overcome Marchese’s prima facie case of purposeful discrimination. We conclude
that the trial court’s finding that Marchese did not establish discriminatory intent
was not clearly erroneous.

¶13 “[W]hen the prosecutor offers a ... neutral explanation [for the
strikes], the [trial] court has the duty to weigh the credibility of the testimony and
determine whether purposeful discrimination has been established.” Id., ¶32. The
defendant has the burden to establish that the prosecutor’s stated reasons for the
strikes were a pretext for purposeful discrimination. Id. “[I]t is at this step that
the issue of persuasiveness and plausibility of the prosecutor’s reasons for the
strike become relevant, and ‘implausible or fantastic justifications may [] be found
to be pretexts for purposeful discrimination.’” Id. (second alteration in original;
citation omitted). Ultimately, however, the “decisive question” at this step is
whether the prosecutor’s stated reasons for the strikes “should be believed.” Id.,

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No. 2021AP626-CR

¶43 (citation omitted). Because the trial court “is in the best position to determine
the credibility of the [S]tate’s ... neutral explanations,” we give “great deference”
to the court’s ruling as to whether the prosecutor had a racially discriminatory
purpose in exercising the strikes. Id., ¶¶41-42.

¶14 A factual finding is clearly erroneous if “it is against the great
weight and clear preponderance of the evidence.” State v. Arias, 2008 WI 84,
¶12, 311 Wis. 2d 358, 752 N.W.2d 748 (citation omitted). “[A] factual finding is
not clearly erroneous merely because a different fact-finder could draw different
inferences from the record.” State v. Wenk, 2001 WI App 268, ¶8, 248 Wis. 2d
714, 637 N.W.2d 417. Thus, “[w]here multiple inferences are possible from
credible evidence, we must accept those drawn by the trial court.” State v. Lopez,
173 Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992). “The rationale for
applying such a deferential standard is that the determination of discriminatory
intent is largely informed by the trial judge’s perceptions at voir dire.” Id.

¶15 Here, the trial court found that the prosecutor did not exercise the
State’s peremptory strikes on the basis of race. We accept the court’s
determination as to the credibility of the State’s race-neutral explanations. The
trial court was present throughout voir dire and observed firsthand the questioning
of the panel and Wilson’s characterization of S.B.’s look toward him. The State
explained its neutral reasons for the strike to the court, which again was in the best
position to evaluate the credibility of the prosecutor’s reasons in an in-person
setting.

¶16 Although he contends that the trial court’s findings were clearly
erroneous, Marchese fails to demonstrate on appeal how the court got it wrong.
As we now discuss, Marchese points to nothing in the record to show that the trial

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No. 2021AP626-CR

court’s findings were “against the great weight and clear preponderance of the
evidence.” See Arias, 311 Wis. 2d 358, ¶12.

¶17 Turning first to the State’s act in striking S.B. based on his criminal
record while not striking G.M. despite her record, Marchese fails to meet his
burden of demonstrating that the State’s reasons were pretextual. Marchese argues
that because it is illegal for G.M., a convicted felon, to own a firearm “[t]he only
… logical explanation” is that the State kept G.M. on the jury because she is
white. However, the fact that possessing a firearm is illegal does not change the
facts that G.M. stated that she owned a firearm and that the familiarity with
firearm characteristics that she presumably possesses was viewed as a positive
factor by the State.

¶18 The prosecutor’s rationale for wanting firearms owners on the jury
because the case involved shootings and ballistics evidence is both plausible and
persuasive given that some potential jurors expressed an inability to treat
Marchese as presumptively innocent of the shooting charges simply because
Marchese possessed a firearm. Thus, contrary to what Marchese claims, S.B. and
G.M. did not present identically as potential jurors in all respects except for their
different ethnicities. The trial court accepted the State’s
firearm-ownership rationale as a legitimate, nondiscriminatory reason for striking
S.B. and not G.M. Marchese has not provided any compelling reasons why we
should not accept the court’s finding as to this basis for striking S.B.

¶19 Marchese similarly fails to meet his burden of demonstrating that the
State’s second proffered race-neutral reason, the negative look that S.B. reportedly
gave to the detective, was pretextual. Marchese argues that the prosecutor’s

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No. 2021AP626-CR

failure to individually question S.B. regarding the look toward Wilson shows that
this reason was pretextual.3

¶20 Marchese also cites to Flowers v. Mississippi, 139 S. Ct. 2228
(2019) in support of his pretext argument. He asserts that the Flowers Court’s
reasoning in concluding that there was purposeful discrimination in that case
applies equally here. Due to various mistrials and reversals for prosecutorial
misconduct and bias in the jury selection process, the state took Flowers to trial six
times for murder and successfully convicted him after the sixth jury trial.
Flowers, 139 S. Ct. at 2234. The same prosecutor represented the State in all six
trials, and in reversing Flowers’s third conviction, the Mississippi Supreme Court
had observed that the case “presents us with as strong a prima facie case of racial
discrimination as we have ever seen in the context of a Batson challenge.” Id. at
2235 (citation omitted).

¶21 In reviewing the Batson challenge to Flowers’s sixth conviction, the
Court relied on the totality of the circumstances. Id. The Court focused on the
collective effects of the facts that the prosecutor had used peremptory strikes to
remove five of the six African Americans who were on the panel in the sixth trial,
had stricken forty-one of forty-two African Americans over the course of the
multiple trials, had engaged in disparate questioning of African-American and

3
We reject Marchese’s argument that the failure of the prosecutor to conduct individual
follow-up questions of S.B. demonstrates that the State’s rationale for striking him is a pretext for
race discrimination. Marchese contends that the prosecutor would have insisted on individual
voir dire if its peremptory strike of S.B. from the panel had not been racially motivated. In State
v. Lamon, our supreme court reaffirmed a previous holding that individual follow-up questions
are not required in order to uphold a decision to strike a potential juror, even in the face of a
Batson challenge. Lamon, 2003 WI 78, ¶¶72, 92, 262 Wis. 2d 747, 664 N.W.2d 607 (citing
State v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991)). We do not address this
argument further.

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No. 2021AP626-CR

White potential jurors throughout the multiple jury selections, and had stricken at
least one African-American potential juror while retaining similarly situated White
jurors. Id.

¶22 Marchese’s reliance on Flowers is misplaced. The jury selection
process that we now review is readily distinguishable from the multiple jury
selections in Flowers. Unlike Flowers, this case involved only one trial, as
opposed to Flowers’s six trials, all with the same prosecutor. Moreover, again in
contrast to Flowers, there is no record that the prosecutor in Marchese’s trial had a
history of purposeful discrimination when impaneling juries. Based on all of the
relevant facts, the Flowers Court held that the record established that the
prosecutor’s peremptory strikes were motivated at least in part by a discriminatory
intent and purpose. Id. Unlike Flowers, Marchese fails to point us to any part of
the record that establishes intentional discrimination based on S.B.’s race.

¶23 Here, the trial court found the detective’s reported observation of the
look by S.B. credible and the reason given by the prosecutor valid. We have in the
past upheld a trial court’s determination that a prosecutor’s striking African-
American potential jurors based on their disdain for law enforcement did not
violate Batson. State v. Sanders, 2019 WI App 52, 388 Wis. 2d 502, 933 N.W.2d
670. In Sanders, we concluded that the trial court’s findings were not clearly
erroneous, observing that the prosecutor had expressed a “legitimate,
nondiscriminatory concern about potential bias against the State’s case.” Id., 388
Wis. 2d 502, ¶12. Similarly, we conclude here that Marchese has failed to
overcome the “great deference” that we afford the trial court’s findings. See
Lamon, 262 Wis. 2d 747, ¶42.

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No. 2021AP626-CR

¶24 For all these reasons, we uphold the findings of the trial court and its
determination that Marchese did not meet his burden of demonstrating purposeful
discrimination by the prosecutor.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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