United States District Court, E.D. Wisconsin
PAUL J. FARGO, Petitioner,
TIMOTHY DOUMA, WARDEN, Respondent.
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1)
PAMELA PEPPER United States District Judge
Paul Fargo was convicted by a jury of first-degree sexual
assault of a child under the age of thirteen, in violation of
Wis.Stat. §948.02(1)(e). He filed a petition for a writ
of habeas corpus under 28 U.S.C. §2254, arguing
that (1) the trial court violated his constitutional right to
present a defense by excluding evidence of the victim's
prior sexual knowledge, and (2) the trial court violated his
right to be represented by counsel at all critical stages of
the proceeding by denying his motion for a mistrial based on
an ex parte conversation between a bailiff and one
of the jurors. Dkt. No. 1. The petitioner exhausted these
claims in the state courts, and he was denied relief. The
habeas case now is ripe for a decision. For the
reasons explained below, the court will deny the petition,
because the court concludes that the state court's
decision is not contrary to, nor an unreasonable application
of, clearly established federal law.
Circuit Court of Kenosha County, Wisconsin, the petitioner
was convicted by a jury of first-degree sexual assault of a
child under the age of thirteen, in violation of Wis.Stat.
§948.02(1)(e). The charge “arose from the
child's claim that Fargo inserted his finger into her
vagina and repeatedly ‘itched' her vagina.”
State v. Fargo, 809 N.W.2d 900, ¶1 (Wis. Ct.
App. Jan. 18 2012). He raised multiple issues in his
unsuccessful state court appeal, two of which he pursued in
his habeas petition.
The Trial Court Excluded Evidence Relating to the
Victim's Prior Sexual Knowledge
petitioner's first claim is that the circuit court erred
by excluding potentially exculpatory evidence that the victim
had prior sexual knowledge. In the trial court, the
petitioner moved to introduce evidence that the victim
“and a four-year-old playmate were engaged in
‘sex play' a few weeks before Fargo allegedly
assaulted her.” Id., ¶10. At a hearing on
the petitioner's motion, the petitioner's trial
counsel proffered that the victim and her playmate were
together in an upstairs room of the victim's house, while
the victim's mother and the mother of the playmate were
downstairs. Dkt. No. 9-11 at 4. According to counsel, the
victim's mother noticed the children became quiet and she
went upstairs, where she saw the victim and the playmate
“naked lying on top of each other, he on top of her,
and were touching each other.” Dkt. No. 9-11, at 4. The
petitioner's counsel referred to the children's
activity as “sex play.” Id.
rape shield law, Wis.Stat. §972.11(2), generally
prohibits the introduction of evidence concerning the alleged
victim's prior sexual conduct. State v. Carter,
782 N.W.2d 695, 709-10 (Wis. 2010). In certain cases,
however, a defendant can establish that the trial court
should exercise its discretion to admit “otherwise
excluded evidence of a child complainant's prior sexual
conduct for the limited purpose of proving an alternative
source for sexual knowledge.” Id., ¶42.
The five-prong test established by the Wisconsin Supreme
Court requires a defendant to show:
(1) that the prior acts clearly occurred; (2) that the acts
closely resembled those of the present case; (3) that the
prior act is clearly relevant to a material issue; (4) that
the evidence is necessary to the defendant's case; and
(5) that the probative value of the evidence outweighs its
State v. Pulizzano, 456 N.W.2d 325, 335 (Wis. 1990).
trial court held two hearings regarding the defendant's
proffered “sex play” evidence. After the first
hearing, in which the trial court did not take testimony, the
court stated that it was uncertain whether the prior act
clearly had occurred or closely resembled the act at issue in
this case. Dkt. No. 9-11 at 25. The court stated that it was
“leaning towards allowing” the evidence to be
admitted, but would have felt “more comfortable making
a final ruling on this after an offer of proof from [the
victim's mother] on the day of trial.” Id.
second hearing, held during the trial outside the jury's
presence, the victim's mother testified that, when she
went upstairs to check on the children, she found the victim
and her playmate “with their pants down.” Dkt.
No. 9-12 at 13. She testified that she “immediately
closed the door, went downstairs, and asked [the
playmate's] mom what to do.” Id. After
being recalled to testify, the victim's mother added
that, when she observed the children with their pants down,
she saw the playmate “standing over [the victim]. She
was laying on her back. And he was standing over her with his
pants down.” Id. at 16-17. She did not observe
the children touching each other with their hands or fingers.
Id. at 17. The petitioner then called a private
investigator as an impeachment witness, who testified that
the victim's mother told her that she saw both children
naked, the playmate was on top of the victim, and the
playmate's penis was on the child's stomach. The
trial court denied the petitioner's motion to admit
evidence of “sex play” because the court found no
evidence of “sex play, ” touching, sexual
intercourse, or sexual contact. Id. at 27-28. The
court further found that there would be a danger of unfair
prejudice if the evidence were admitted. Id. at 28.
appeal, the Wisconsin Court of Appeals concluded that the
trial court's “findings about the ‘sex
play' evidence are supported by the record.”
Fargo, 809 N.W.2d 900, ¶14. That court agreed
that was “a dispute about exactly what happened between
the children and whether the conduct could even be described
as sexual at all.” Id. The appellate court
held that the trial court did not err in excluding this
evidence because the petitioner's “offer of proof
did not establish that the playmate's act closely
resembled the allegations against him.” Id.
Because the court found that the petitioner did not show that
the prior act clearly occurred and closely resembled the
allegations against him, as required by the first two prongs
of the Pulizzano test, the appellate court concluded
that the trial court correctly excluded this evidence.
The Trial Court Denied the Petitioner's Motion for a
Mistrial Based on an Ex Parte Discussion Between a Bailiff
and a Juror.
petitioner's second claim is based on a conversation
between one juror and a court bailiff, which occurred after
the trial concluded and the jury retired to deliberate. When
a bailiff was in the jury room cleaning up after lunch,
“one of the jurors spontaneously asked [the bailiff]
what do we do if we're 50/50.” Dkt. No. 9-17 at 72.
The bailiff told the juror that “you need to discuss it
further or if you want any additional information you need to
write a note to the judge asking more information.”
Id. The petitioner's counsel moved for a
mistrial based upon the bailiff's interaction with the
juror, arguing that the bailiff essentially gave the
“dynamite instruction” to the juror, otherwise
known as an Allen charge, which can be given to the
jury if it reports that it is deadlocked. The trial court
denied the mistrial motion because it did not “see any
harm that the bailiff caused, ” although the court
agreed with counsel that the bailiff should not have answered
the question. Id. at 76.
Wisconsin Court of Appeals affirmed the trial court's
decision to deny the petitioner's motion for a mistrial
based on the bailiff's conversation with the juror. That
court held that there was “no evidence that the jury
was deadlocked at the time the bailiff interacted with the
juror. While the bailiff should have directed the juror's
inquiry to the judge, the bailiff's remarks were
nevertheless consistent with the thrust of the dynamite
instruction.” Further, the court rejected the
petitioner's characterization of the conversation as
“critical, ” concluding that the bailiff's
remark was made to one juror and did not carry the weight of
a remark or instruction from the judge.” Id.
at ¶25. The Wisconsin Supreme Court denied the
petitioner's petition for review, and he timely filed his
habeas petition in this court.
The Petitioner's Claims Are Subject to ...