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Fargo v. Douma

United States District Court, E.D. Wisconsin

September 28, 2016

PAUL J. FARGO, Petitioner,


          HON. PAMELA PEPPER United States District Judge

         Petitioner 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.

         I. BACKGROUND

         In the 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.

         A. The Trial Court Excluded Evidence Relating to the Victim's Prior Sexual Knowledge

         The 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.

         Wisconsin's 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 prejudicial effect.

State v. Pulizzano, 456 N.W.2d 325, 335 (Wis. 1990).

         The 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. at 26.

         At the 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.

         On 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.

         B. The Trial Court Denied the Petitioner's Motion for a Mistrial Based on an Ex Parte Discussion Between a Bailiff and a Juror.

         The 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[1], 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.

         The 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.

         II. ANALYSIS

         A. The Petitioner's Claims Are Subject to ...

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