# State v. Walker > Wisconsin Supreme Court · April 2, 1990 · 154 Wis. 2d 158 URL: https://www.frixlaw.com/law-library/cases/9685720 ## Case - **Full name:** STATE of Wisconsin, Plaintiff-Respondent, v. Lionel D. WALKER, Defendant-Appellant - **Court:** Wisconsin Supreme Court - **Decided:** April 2, 1990 - **Citations:** 154 Wis. 2d 158; 453 N.W.2d 127; 1990 Wisc. LEXIS 104 - **Precedential status:** Published - **Opinion:** Dissent by Ceci - **Judges:** Callow, William, Ceci - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by State v. Felix, 339 Wis. 2d 670 (2012). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9685720 ## How later opinions describe it (automated extraction) - holding that “Payton and Oliver require that police obtain a warrant before entering either the home or its curtilage to make an arrest” unless they have both probable cause and exigent circumstances - holding that a backyard was within the curtilage of the home ## Opinion text LOUIS J. CECI, J. (dissenting.) On this appeal, Walker argues that he was denied his state and federal constitutional rights to effective assistance of counsel during his criminal trial. Walker claims that his trial counsel was ineffective when he failed to make an objection, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection and when he failed to move to suppress lineup and in-court identifications of Walker as the fruit of an unlawful arrest. The majority, relying on State v. Cleveland, 118 Wis. 2d 615 , 348 N.W.2d 512 (1984), undertakes a discretionary review of the merits of the alleged Batson violation and avoids the issue of ineffective assistance of counsel. The majority then concludes that because Walker is entitled to a new trial pursuant to Batson , it need not decide whether he was denied effective assistance when counsel failed to move to suppress the lineup and in-court identifications. I disagree with the approach taken by the majority and would analyze Walker's contentions under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), for claims of ineffective assistance of counsel. A claim of ineffective assistance brought pursuant to the sixth amendment to the United States Constitution must meet the test articulated by the United States Supreme Court in Strickland. State v. Moffett, 147 Wis. *194 2d 343, 352 , 433 N.W.2d 572 (1989). Under that test, the defendant must prove not only that his counsel's performance was deficient but also that the deficient performance prejudiced the defense. Id. Where, as here, the alleged ineffectiveness relates to counsel's failure to raise a claim on the defendant's behalf, the defendant must prove that he is prejudiced by the omission by showing that the claim was meritorious and that there is a reasonable probability that, but for the omission, the result of the proceeding would have been different. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Walker's first claim of ineffective assistance relates to counsel's failure to make a Batson objection during jury selection. In deciding Batson , the United States Supreme Court contemplated that a minority defendant would object to the prosecutor's allegedly discriminatory use of peremptory challenges before members of the venire are dismissed and before the jury is impaneled. Batson, 476 U.S. at 99 -100 n.24. See also Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. Crim. L. & Criminology 1 , 18-19 (1988). A timely Batson objection ensures that the circuit court is able to contemporaneously review the prosecutor's reasons for striking members of the defendant's race and to easily cure any racial discrimination in the jury selection process before trial. Id. at 18 . The majority observes, at p. 176 n.12, that Batson requires a timely objection. However, the majority ignores this requirement and reviews the merits of Walker's Batson claim as if it were timely raised. 1 In the *195 instant case, Walker did not object to the prosecutor's use of a peremptory challenge as discriminatory until more than eighteen months after the selection of his jury and the commencement of his criminal trial. As a result of the delay, the prosecutor had difficulty remembering the reasons for his use of a peremptory challenge to strike the only black person on the petit jury during jury selection. Where the defendant does not object to the prosecutor's use of a peremptory challenge in a timely fashion, I do not believe that the benefit of enforcing Batson by vacating convictions is warranted absent some affirmative showing that the defendant was deprived of a trial before a fair and impartial jury or that the result of the trial was unreliable. I therefore believe that Walker's claim of ineffective assistance must fail on the prejudice prong of the Strickland analysis. At the post-conviction hearing, Walker made absolutely no showing that he had been deprived of a trial before a fair and impartial jury or that the result of his trial was unreliable. Accordingly, I would hold that Walker failed to establish that there is a reasonable probability that, but for counsel's omission, the result of his trial would have been different. If a court is able to dispose of a claim of ineffective assistance on the ground of insufficient prejudice, it need not determine whether counsel's performance was also deficient. Strickland, 466 U.S. at 697 . *196 Walker's second claim of ineffective assistance relates to his counsel's failure to move to suppress lineup and in-court identifications of Walker as the fruit of an unlawful arrest. I believe that additional fact-finding must be performed on the merits of the motion to suppress before an analysis of Walker's claim of ineffective assistance may be undertaken. I would, therefore, remand the case to the circuit court for additional fact-finding on that issue. For the reasons stated, I dissent. I am authorized to state that Justice Roland B. Day joins in this dissenting opinion. In a number of cases cited in the majority opinion, a timely Batson objection was made. See Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988); United States v. Clemons, 843 F.2d 741 (3d Cir. 1988); People v. Scott, 70 N.Y.2d 420 , 516 N.E.2d 1208 (1987); *195 Pearson v. State, 514 So. 2d 374 (Fla. Dist. Ct. App. 1987); United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987); United States v. David, 803 F.2d 1567 (11th Cir. 1986); State v. Gilmore, 103 N.J. 508 , 511 A.2d 1150 (1986). Where, as here, a Batson objection is not raised in a timely fashion, I cannot agree with the majority that a Cleveland review of the merits of the Batson claim is warranted. I believe that the proper approach is to review such a case under the prejudice analysis of Strickland . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9685720. Public record. Not legal advice.