COURT OF APPEALS 

DECISION 

DATED AND FILED

August 20, 2019 

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. 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 

2 

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. 
No. 2018AP1639-CR 

3 

(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. 
No. 2018AP1639-CR 

4 

¶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. 
No. 2018AP1639-CR 

5 

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. 
No. 2018AP1639-CR 

6 

¶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 
No. 2018AP1639-CR 

7 

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 
No. 2018AP1639-CR 

8 

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 
No. 2018AP1639-CR 

9 

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. 
No. 2018AP1639-CR 

10 

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 eleventhhour 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 
No. 2018AP1639-CR 

11 

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 
No. 2018AP1639-CR 

12 

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. 
No. 2018AP1639-CR 

13 

¶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. 
No. 2018AP1639-CR 

14 

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 
No. 2018AP1639-CR 

15 

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 
No. 2018AP1639-CR 

16 

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 
No. 2018AP1639-CR 

17 

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 
No. 2018AP1639-CR 

18 

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. 
No. 2018AP1639-CR 

19 

¶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. 
No. 2018AP1639-CR 

20 

¶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 
No. 2018AP1639-CR 

21 

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.