COURT OF APPEALS

DECISION

DATED AND FILED

June 19, 2024

Samuel A. Christensen

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. 2022AP605-CR Cir. Ct. No. 2020CF413

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DONALD LEE BILLINGS,

 DEFENDANT-APPELLANT.

APPEAL from judgment and an order of the circuit court for 

Winnebago County: DANIEL J. BISSETT, 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. 2022AP605-CR

2

¶1 PER CURIAM. Donald Lee Billings appeals a judgment convicting 

him of first-degree intentional homicide and unlawfully possessing a firearm as a 

previously convicted felon. He also appeals an order denying his motion for 

postconviction relief. He argues: (1) that he was denied the right to a trial by a fair 

and impartial jury; and (2) that there was insufficient evidence presented at trial to 

support his conviction for first-degree intentional homicide. We affirm.

¶2 Billings was charged with first-degree intentional homicide and 

unlawfully possessing a firearm as a felon in the death of Adam Baith. A jury 

convicted him of both counts. Billings moved for postconviction relief, arguing a 

violation of his constitutional right to a jury drawn from a fair cross section of the 

community. In lieu of an evidentiary hearing, the State and the defense stipulated 

to facts that served as the basis for the claim. The circuit court denied the motion. 

This appeal follows.

¶3 Billings first argues that his right to a jury drawn from a fair cross 

section of the community was violated because the jury venire significantly 

underrepresented Black Americans. According to the stipulated facts, jury venires 

in Winnebago County in 2021, as well as the jury panel called for this case, were 

drawn from a random list of people provided by the Department of Motor Vehicles 

(DMV). In addition, Black Americans constituted 2.5% of the population in 

Winnebago County per the United States Census Bureau, but Black Americans 

constituted only .81% of the jury venire panels in Winnebago County. Billings 

claims that this underrepresentation is due to systematic exclusion stemming from 

the jury selection process. 

¶4 The Sixth Amendment and Fourteenth Amendment guarantee a 

defendant the right to a “jury selected from a fair cross section of the community.” 
No. 2022AP605-CR

3

Duren v. Missouri, 439 U.S. 357, 358-59 (1979). To show a prima facie violation 

of the fair cross section requirement, a defendant must establish: 

(1) that the group alleged to be excluded is a “distinctive” 

group in the community; (2) that the representation of this 

group in venires from which juries are selected is not fair and 

reasonable in relation to the number of such persons in the 

community; and (3) that this underrepresentation is due to 

systematic exclusion of the group in the jury-selection 

process. 

Id. at 364. Whether Billings has made a prima facie case under Duren is a question 

of law that we review independently. See State v. Arrington, 2022 WI 53, ¶33, 402 

Wis. 2d 675, 976 N.W.2d 453. 

¶5 We focus on the third prong of the Duren test. Billings argues that 

the jury selection process in Winnebago County systematically underrepresents 

Black Americans because Winnebago County uses records from the Department of 

Motor Vehicles (DMV) to draw its jury pool, and those records disproportionately 

exclude minorities, who are less likely to have driver’s licenses. He also contends 

that Wisconsin statutes excluding felons from jury service disproportionately limit 

the number of Black Americans in the jury pool, citing statistical evidence on racial 

disparities in incarceration rates. 

¶6 Even if we assume, for the sake of argument, that Billings has carried 

his burden of showing that Black Americans are underrepresented in the jury venires 

of Winnebago County, Billings has not carried his burden of showing that the 

underrepresentation is the result of systematic exclusion of Black Americans. 

Although Wisconsin courts have apparently not addressed when 

underrepresentation of a distinct group is systematic under Duren, we believe the 

reasoning of the California Supreme Court is persuasive: “[a] defendant does not 

discharge the burden of demonstrating that the underrepresentation was due to 
No. 2022AP605-CR

4

systematic exclusion merely by offering statistical evidence of a disparity. A 

defendant must show, in addition, that the disparity is the result of an improper 

feature of the jury selection process.” People v. Henriquez, 406 P.3d 748, 763 (Cal.

2017) (alteration in original; citation omitted). The Henriquez court further 

explained that “[w]here ... a county’s jury selection criteria are neutral with respect 

to the distinctive group, the defendant must identify some aspect of the manner in 

which those criteria are applied that is not only the probable cause of the disparity 

but also constitutionally impermissible.” Id. 

¶7 Billings has not shown that the disparity here is the result of some 

constitutionally impermissible feature of Winnebago County’s jury selection 

process. Billings contends that randomly drawing potential jurors from DMV 

records disproportionately excludes minorities, but he has not shown that any other 

available governmental list or method of procuring potential jurors would have 

produced a jury venire that is more representative of the population. Without 

evidence showing that an alternative source of potential jurors would expand the 

diversity of the jury pool, and thus include more Black Americans, Billings’ 

argument lacks a proper evidentiary underpinning. 

¶8 Moreover, Billings provides no legal authority to support his 

argument that Wisconsin’s felon exclusion law results in constitutionally 

impermissible jury pools. This is an argument that has been routinely rejected by 

courts. See, e.g., United States v. Barry, 71 F.3d 1269, 1273-74 (7th Cir. 1995); 

United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979). In sum, without evidence 

regarding the effect of using other sources to create jury venires or legal authority 

to support his felon exclusion law argument, Billings has not established that he 

meets the third prong of the Duren test—that the underrepresentation was due to 

systemic exclusion.
No. 2022AP605-CR

5

¶9 Billings next argues that his conviction was not supported by 

sufficient evidence. “[A]n appellate court may not reverse a conviction unless the 

evidence, viewed most favorably to the [S]tate and the conviction, is so insufficient 

in probative value and force that it can be said as a matter of law that no trier of fact, 

acting reasonably, could have found guilt beyond a reasonable doubt.” State v. 

Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The standard for 

reviewing a conviction based on circumstantial evidence is the same as the standard 

for reviewing a conviction based on direct evidence. Id. “[T]he trier of fact is the 

sole arbiter of the credibility of the witnesses and alone is charged with the duty of 

weighing the evidence.” State v. Below, 2011 WI App 64, ¶4, 333 Wis. 2d 690, 799 

N.W.2d 95. “When more than one inference can reasonably be drawn from the 

evidence, the inference which supports the trier of fact’s verdict must be the one 

followed on review unless the evidence is incredible as a matter of law.” Id.

¶10 The jury viewed a surveillance video showing Billings and Baith 

talking at a bar and leaving together. Billings’ friend, Cristafer Berdell, testified 

that he was with Dominica Propst and Billings at the bar. When the bar closed, they 

left to follow Baith to his home with the intention of continuing to drink. Berdell 

further testified that upon arrival at Baith’s home, he and Propst stayed in the car 

talking and smoking while Billings and Baith went inside. Berdell heard gunshots 

seven or eight minutes later and called 911, fearing that Billings had been shot. 

¶11 Propst testified that she left the bar with Berdell and Billings. She 

saw Billings and Baith enter Baith’s home and heard gunshots a while later.

¶12 One of the responding police officers testified that he saw a man leave 

through the back door of Baith’s house but lost sight of him. Upon entering the 

home, the police found Baith dead. Billings’ DNA and his palm prints were found 
No. 2022AP605-CR

6

inside. The medical examiner testified that Baith died from multiple gunshot 

wounds, with evidence suggesting close-range firing. Baith’s wallet and Billings’ 

cell phone were found on nearby property, suggesting a possible attempt to dispose 

of evidence.

¶13 Shortly after Baith’s murder, surveillance footage captured Billings 

arriving at his girlfriend’s home nearby and then leaving shortly thereafter. Billings’ 

girlfriend testified that Billings arrived at her house at around 4:30 a.m., was acting 

suspiciously and demanded that she immediately drive him to Milwaukee. 

¶14 The evidence presented at trial, briefly summarized above, which 

included witness testimony, physical evidence, and forensic analysis provided a 

robust basis for the jury to conclude beyond a reasonable doubt that Billings was 

responsible for the death of Baith. We reject the argument that there was insufficient 

evidence for the jury to conclude that Billings was guilty beyond a reasonable doubt 

of first-degree intentional homicide.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5 (2021-22).