Donovan M. Burris, Petitioner-Appellant,
Judy P. Smith, Respondent-Appellee.
Argued April 6, 2016
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-cv-00465— Rudolph T. Randa, Judge.
Before Flaum, Ripple, and Hamilton, Circuit Judges.
Flaum, Circuit Judge.
Petitioner Donovan Burris argues that a supplemental jury instruction given during his trial in Wisconsin state court misled the jury in a way that violated the Constitution. On direct appeal, the Wisconsin Supreme Court held that although the instruction may have been ambiguous, it was not reasonably likely that it misled the jury . Burris petitioned for habeas relief in the district court. The district court denied habeas relief and Burris appeals. We conclude that the Wisconsin Supreme Court did not unreasonably apply clearly established federal law and affirm the judgment of the district court.
On September 5, 2007, Donovan Burris went to visit his ex-girlfriend Khadijah Rashada. Khadijah was staying with her mother, Cathy Rashada, at Cathy's apartment. Burris and Khadijah's two children and Khadijah's brother, Kamal Rashada, were also at the apartment. Burris brought a handgun with him to the apartment. After Burris arrived, he and Khadijah began to argue. The parties dispute what happened next, but ultimately, Burris fired a single shot from his handgun, hitting Kamal in the neck and paralyzing him. Burris's two children were present during the incident.
The state charged Burris with first degree reckless injury under Wis.Stat. § 940.23(1) and possession of a firearm by a felon under Wis.Stat. § 941.29(2)(a). At trial in the Milwaukee County Circuit Court, the judge instructed the jury on the charged offenses, as well as the lesser included offense of second degree reckless injury under Wis.Stat. § 940.23(2). In Wisconsin, the only difference between first and second degree reckless injury is that for first degree liability, the government must prove that the defendant caused bodily harm under circumstances showing an "utter disregard for human life." Wis.Stat. § 940.23.
At trial, Burris argued that the shooting was an accident. He testified that when he arrived at the apartment, he placed the gun under a mattress for safety reasons. He claimed that he brought the gun for protection because of an earlier altercation involving the Rashadas' neighbors. Burris stated that after hiding the gun, he talked with Khadijah, leading to an argument. Cathy asked Burris to leave. Burris testified that he then retrieved the gun and headed towards the door with the gun at his side, while still arguing with Khadijah. Burris claimed that as he and Khadijah were arguing near the front door, Kamal grabbed Burris's wrist from behind, and as Burris turned and pulled his hand away, the gun fired and hit Kamal.
The Rashadas—Khadijah, Cathy, and Kamal—offered a different version of the incident at trial. They claimed that Burris never stored the handgun under the mattress and that as he argued with Khadijah, Burris threatened her and pointed the gun at her. When Cathy asked Burris to leave, he refused. According to the Rashadas, Kamal tapped Burris on his left side to get his attention and asked Burris to leave. In response, Burris turned around, raised the gun, and shot Kamal in the neck at close range.
During cross-examination, Burris impeached the Rashadas' testimony with inconsistent statements that they made to the police immediately after the incident. The statements that the Rashadas gave to the police mirrored Burris's trial testimony: Burris had the gun at his side, Kamal grabbed Burris's arm, the gun fired.
Although the parties offered conflicting accounts of Burris's conduct before the gun fired, everyone agreed about Burris's extreme emotional reaction after. Following the gunshot, Burris called out to Kamal and said "I didn't mean to do it." Burris, distraught, then asked either Cathy or Khadijah to shoot him. Burris pointed the gun at his own head and tried to give the gun to either Cathy or Khadijah. About one minute later, Burris stated that he could not go to jail and fled the apartment. Burris evaded police for five months after the shooting and then turned himself in. As the parties note, this after-the-fact evidence was important for both the defense and the government, as it was one of the few sources of undisputed facts bearing on Burris's mental state.
After a three-day trial, the judge instructed the jury on the elements of first degree reckless injury as well as the lesser included offense of second degree reckless injury. The judge further instructed the jury that to determine whether Burris's conduct showed the utter disregard for human life necessary for first degree reckless injury, the jury should consider: "What the defendant was doing, how dangerous the conduct was, how obvious the danger was, whether the conduct showed any regard for human life and all other facts and circumstances relating to the conduct."
During deliberations, the jury submitted a written question to the judge: "Regarding the element of utter disregard, all other facts and circumstances relating to the incident, do we consider facts and circumstances after the shooting?" The trial judge consulted with counsel, and over Burris's objection, decided to give the jury an instruction from the Wisconsin Supreme Court's decision in State v. Jensen, 613 N.W.2d 170 (Wis. 2000). But before the judge answered the jury's question, the jury submitted another question: "Should we consider facts and circumstances after the shooting to determine utter ...