COURT OF APPEALS

DECISION

DATED AND FILED

December 2, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1428-CR Cir. Ct. No. 2017CF950

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

HAROLD L. WILCHER,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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. 2019AP1428-CR

2

¶1 PER CURIAM. Harold L. Wilcher appeals from a judgment of 

conviction and an order denying his postconviction motion. He contends that the 

circuit court erred in finding no evidence of race-based discrimination when the 

prosecutor struck two prospective African-American jurors in his case. He further 

contends that his sentence was unduly harsh. We reject Wilcher’s arguments and 

affirm.

¶2 In 2017, the State charged Wilcher with first-degree reckless 

homicide and delivery of heroin, both as a party to a crime. Wilcher was accused 

of causing the death of Anthony B. Niccolai by delivering heroin laced with

fentanyl, which Niccolai used and died of as a result. According to the complaint, 

Niccolai asked his son-in-law Matthew Poyner to purchase some heroin for him. 

Poyner made the purchase1from a woman named Valerie Brooks, who, in turn, 

obtained it from Wilcher. While Poyner and Brooks entered plea agreements with 

the State, Wilcher pled not guilty and proceeded to trial.

¶3 At trial, the prosecutor used peremptory challenges to

strike two prospective African-American jurors: Anthony Stephens and

Reneesha Georgette Brown. Defense counsel made a Batson2challenge. In 

response, the prosecutor explained that his decision to strike Stephens and Brown 

was based upon their criminal convictions. He stated:

[I]n this voir dire, there really weren’t many responses to 

my questions that I found concerning except for one person 

I struck, so the rest I essentially did on their known 

criminal record, and Mr. Stephens—at least my information 

is he has—he was charged with or convicted—it looks like 

 

1

 According to Poyner, he did not intend to purchase heroin with fentanyl in it.

2

 Batson v. Kentucky, 476 U.S. 79 (1986).
No. 2019AP1428-CR

3

he was charged with physical abuse of a child, convicted of 

a couple counts of battery in 2000. I was noting his 

reaction—knowing that he had this history, I was noting his 

reaction when I asked if anybody had any contact with my 

office. He sort of started to raise his hand, then did not, 

which is not—I guess it is understandable given that he 

would not want to reveal his criminal background, but one, 

he has interaction with my office, and two, that he felt the 

need apparently to not be forthright about it was 

concerning, and also I did strike the only two jurors I know 

of that have criminal convictions, which brings me to

Ms. Brown, who has, while not a Kenosha criminal record, 

my information and the name is at least somewhat unique, 

so I’m fairly confident in it—she has an eviction on her 

record. She has an OAR. She has an operating without 

insurance, cracked, damaged windshield, operating without 

proof of insurance. Most concerning is she has a relatively 

recent conviction for issuance of worthless checks, 

disorderly conduct, and operating a motor vehicle without 

proof of insurance, and there is also a 2012 case for fraud, 

used to defraud is what my information says is on her 

CCAP record. Given that, that gave me pause in having 

her be a juror. I was concerned either or both of them 

could potentially have—I would not say a vendetta but at 

least some bias against the State of Wisconsin, and Ms. 

Brown in particular had convictions for dishonesty, and I 

thought that she would make not a suitable juror and that 

she may be biased against the State, so for those reasons—

the reason I struck those two was their records, and really 

there wasn’t much else to go on with this jury except for 

Mr. Kipp, who I struck because of his responses.3 

Everyone else was fairly quiet, so I did strike three jurors 

for their criminal records, the other being Mr. Myers, who 

appeared to be Caucasian.

From this, the circuit court determined that the prosecutor had provided a raceneutral reason for the strikes. Accordingly, it rejected defense counsel’s Batson

challenge.

 

3 Kipp had questioned whether a drug dealer should be held legally responsible for the 

death of a person who voluntarily ingested the lethal drug.
No. 2019AP1428-CR

4

¶4 The State subsequently presented its case to the jury. This included 

testimony from Poyner and Brooks, who described the transaction and Wilcher’s 

involvement in it. It also included testimony from a forensic pathologist, who 

noted the lethality of the drugs and attributed Niccolai’s death to an “[a]cute 

mixed drug intoxication.” Additionally, it included an audio recording of Wilcher 

explaining to police why he sold heroin with fentanyl in it:

These fucking idiots, man, they wanna die. You know 

what I mean? If the dope ain’t good enough to put their ass 

in a coma, they’re not happy.... They’re happy when 

they’re face is in their lap and they’re drooling. They’re 

not happy if their dope don’t make them go into a coma.... 

They want fuckin’ fentanyl.... They want to get fuckin’ 

demolished. Do you know what I mean? They want to be 

destroyed. And then when that happens, then they start 

crying.

¶5 Ultimately, the jury convicted Wilcher of both charges. On the 

count of first-degree reckless homicide, the circuit court sentenced Wilcher to 

eighteen years of initial confinement and eight years of extended supervision. On 

the count of delivery of heroin, the court withheld sentence and ordered a 

consecutive term of four years of probation.

¶6 After sentencing, Wilcher filed a postconviction motion seeking to 

modify his sentence. In it, he complained that his sentence was unduly harsh 

when compared with the sentences of Poyner and Brooks.4 The circuit court 

disagreed and denied the motion, citing differences in the cases. The differences 

included Poyner’s and Brooks’ cooperation with the State and what the court 

 

4

 Poyner pled guilty to second-degree reckless homicide as a party to a crime and was 

sentenced to six and one-half years of initial confinement and ten years of extended supervision. 

Brooks also pled guilty to second-degree reckless homicide as a party to a crime and was 

sentenced to four years of initial confinement and four years of extended supervision. 
No. 2019AP1428-CR

5

perceived as Wilcher’s “cruel indifference to the lives of others combined with his 

willingness to traffic in deadly drugs.” This appeal follows.

¶7 On appeal, Wilcher first contends that the circuit court erred in 

finding no evidence of race-based discrimination when the prosecutor struck two 

prospective African-American jurors in his case. It is a violation of a defendant’s 

equal protection rights to use a peremptory challenge to remove a potential juror 

because of race. See Batson v. Kentucky, 476 U.S. 79, 84 (1986).

¶8 To succeed on a Batson claim, a defendant first must make a prima 

facie case that the prosecutor’s peremptory challenge was race-based. State v. 

Lopez, 173 Wis. 2d 724, 728, 496 N.W.2d 617 (Ct. App. 1992). If that showing is 

made, the burden shifts to the prosecutor to state a race-neutral explanation. Id.

The circuit court then must determine whether the defendant has proved 

purposeful discrimination. Id. We apply the clearly erroneous test to that finding.

Id. at 729.

¶9 Here, in response to defense counsel’s Batson challenge, the 

prosecutor explained that his decision to strike Stephens and Brown was based 

upon their criminal convictions—a criterion he employed to also remove a juror 

who appeared Caucasian. The prosecutor expressed concern that the prior

convictions might result in some kind of bias against the State. See State v. 

Sanders, 2019 WI App 52, ¶11, 388 Wis. 2d 502, 933 N.W.2d 670 (“Bias against 

law enforcement and/or the criminal justice system more generally is a legitimate 

and very understandable reason for the State, when given the opportunity, to strike 

a potential juror.”). This was a clear, reasonably specific, and facially 

nondiscriminatory reason for removing the prospective jurors. Accordingly, we 
No. 2019AP1428-CR

6

cannot say that the circuit court clearly erred in finding that the prosecutor did not 

act with a racially discriminatory intent.

¶10 Wilcher next contends that his sentence was unduly harsh. Again, 

he bases this argument upon the more lenient sentences of his co-actors, Poyner 

and Brooks.

¶11 A defendant challenging a sentence as unduly harsh must show that 

the sentence was “so excessive and unusual and so disproportionate to the offense 

committed as to shock public sentiment and violate the judgment of reasonable 

people concerning what is right and proper under the circumstances.” Ocanas v. 

State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). A sentence well within the 

statutory maximum is presumed not to be unduly harsh. See State v. Grindemann, 

2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507.

¶12 We are not persuaded that Wilcher’s sentence was unduly harsh. As 

noted by the circuit court, there were differences in Wilcher’s case and the cases

of his co-actors. Again, Poyner and Brooks cooperated with the State and entered 

plea agreements; Wilcher did not. Moreover, Wilcher was the main provider of 

the drugs that killed Niccolai. He knew the risk of selling heroin laced with 

fentanyl, yet seemed unmoved by it, describing his clients as “fucking idiots” who 

“wanna die.” In the end, the court’s sentence was well within the statutory 

maximum5and presumed not to be unduly harsh. Id. Wilcher has failed to meet 

his burden of showing otherwise.

 

5

 The statutory maximum sentence for first-degree reckless homicide is twenty-five years 

of initial confinement and fifteen years of extended supervision. See WIS. STAT. §§ 940.02(2)(a) 

and 973.01(2). All references to the Wisconsin Statutes are to the 2017-18 version. 
No. 2019AP1428-CR

7

By the Court.—Judgment and order affirmed. 

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.