COURT OF APPEALS

DECISION

DATED AND FILED

August 2, 2023

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. 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

2

¶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. 
No. 2021AP626-CR

3

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 

Batson2and 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).
No. 2021AP626-CR

4

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.
No. 2021AP626-CR

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¶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., 
No. 2021AP626-CR

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¶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 
No. 2021AP626-CR

7

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 
No. 2021AP626-CR

8

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.
No. 2021AP626-CR

9

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 AfricanAmerican 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. 
No. 2021AP626-CR

10

¶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.