United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DISMISSING CASE
JOSEPH United States Magistrate Judge.
Jermaine Davis, a Wisconsin prisoner, petitions for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Davis
challenges his custody on sufficiency of the evidence grounds
involving his convictions for attempted first degree
intentional homicide while armed, party to a crime; first
degree recklessly endangering safety while armed, party to a
crime; and felony bail jumping. He argues that the State
failed to prove beyond a reasonable doubt that he was the
direct actor or that he somehow aided and abetted in the
commission of the crimes. The respondent answered the
petition and the parties subsequently briefed the petition.
For the reasons explained below, Davis' petition is
denied and the case will be dismissed.
was charged with first degree intentional homicide as party
to a crime while armed with a dangerous weapon; first degree
recklessly endangering safety as a party to the crime with a
dangerous weapon; and felony bail jumping in Milwaukee County
case number 2010CF1281 as the result of an incident that
occurred on March 9, 2010. Davis went to trial on the
charges. At trial, the witnesses testified, in relevant part,
Washington testified that he met a woman named Trish on the
evening of March 9, 2010 while he was at a club. (Jury Trial
Tr., September 13, 2010 P.M., Docket # 14-6 at 87.) They
decided to get breakfast after the club closed.
(Id.) Washington and Trish left in two cars; he
followed her to her house, where she left her car and then
joined him in his vehicle. (Id. at 88-89.) He was
driving a ‘97 red Chevy Tahoe. (Id. at 88.) As
they were driving, another car pulled up beside Washington.
(Id. at 89.) He identified Davis as the driver of
that vehicle. (Id. at 90.) Washington testified that
when Davis pulled up beside them, Davis told him that he
should not deal with “that young lady” and said
that he was going to “bust all the windows out of her
car.” (Id. at 91.) Washington believed Davis
may have said something about Trish having some kind of
disease. (Id. at 92.) Washington testified that
Davis had not threatened him. (Id. at 102-04.) Davis
and Trish were “arguing back and forth, ” and he
was under the impression that Davis did not want him spending
time with Trish. (Id. at 92.)
Davis had threatened to bust the windows out of her car,
Trish was worried about her car. (Id. at 93.) They
returned to her car and moved it in front of Davis'
friends' house. (Id.) They then left and
eventually were stopped at the intersection of Sherman and
Hampton. (Id.) At that time, Washington saw the car
in which he had seen Davis coming through the intersection.
(Id. at 94.) About five to ten minutes had passed
since he had last seen the car. (Id.) Washington
then made a left on to Hampton. (Id. at 94.) The car
he had seen Davis in was heading the same direction as him on
Hampton and was in the outside lane; he was driving in the
inside lane. (Id. at 95-96.) The car slowed down,
and as Washington drove past, “gunshots rang
out.” (Id.) He testified that he did not see
the driver of the car; he could not identify Davis as being
there when shots were fired. (Id. at 104, 105.) On
cross examination, Washington testified that he did not know
for sure that the shots came from the car that he saw.
(Id. at 106.) The other vehicle was behind him at
the time. (Id. at 96.) Washington felt a wound on
his head, and he accelerated and continued to head west on
Hampton. (Id.) He continued to hear gunshots, though
he could not recall how many. (Id. at 96-97.) The
bullet had grazed the side of his head, leaving a scar.
(Id. at 98-99.) At the hospital, a detective from
the Milwaukee Police Department showed him a photo lineup,
and he identified Davis (id. at 100) as the driver
of the vehicle the first time he saw it (id. at
105). He also gave the detective permission (and his keys) to
search his vehicle. (Id.)
police officer Jacob Spano also testified. (Id. at
110.) He was working the late shift on March 9, 2010 into the
morning of March 10, 2010. (Id.) Spano was sent to
the scene of the shooting and shortly after arriving put out
a description of the suspect's vehicle-a burnt orange
newer model Pontiac Grand Prix. (Id. at 111.) Spano
went to the area of North 44th Street and West
Hampton Avenue to begin searching for the vehicle.
(Id.) While stopped at a light at the intersection
of East Capitol and West Appleton, Spano observed a vehicle
traveling eastbound in the far left lane on West Appleton
Avenue, which was a maroon newer model Pontiac Grand Prix.
(Id. at 112.) Spano began following the vehicle,
attempting to catch up with it. (Id. at 112-13.)
When he caught up to the vehicle, he activated the emergency
lights on his fully marked squad car and conducted a traffic
stop of the vehicle. (Id. at 113.) He was able to
tell that there were two black males in the vehicle but could
make out no further details. (Id.) Spano eventually
identified the driver of the vehicle as Davis. (Id.
at 118.) He estimated that about 20 minutes passed between
receiving the initial dispatch about the car and pulling over
Davis. (Id. at 121.)
testified that when he first approached the vehicle, he
shined his flashlight into the back window to see how many
people were in the car. (Id. at 119.) He testified
that the first thing that caught his eye was a spent casing
that was wedged between the window gasket and the trunk.
(Id.) The casing was a nine millimeter casing.
(Id. at 120.) Eventually, he placed Davis under
arrest for outstanding warrants. (Id.) Spano
testified that because he believed the car was involved in
the shooting, he notified his sergeant, and the car was
eventually searched. (Id.)
Police Detective Shannon Jones also testified at Davis'
trial. (Jury Trial Tr., September 14, 2010 A.M., Docket #
14-7 at 18.) He testified that he was working the late shift
on March 9 to March 10, 2010 and was dispatched to a shooting
at the 4600 block of West Hampton Avenue. (Id. at
19-20.) He arrived at approximately 3:15 a.m., and he
testified that the area was well lit by the street lighting.
(Id. at 20.) Jones identified evidence collected at
the scene, including 9 millimeter shell casings.
(Id. at 21-22.) He testified that he collected six
casing in the outside lane heading west on Hampton, which
would be, in his opinion, consistent with a gun being fired
from a vehicle traveling westbound on Hampton. (Id.
at 24.) Jones testified that the locations of the casings
would be inconsistent with a shooter standing in one place
shooting at a moving target. (Id.) They also found
small, fragmented pieces of tinted glass, which Jones
speculated came from a car window. (Id. at 24-25.)
Milwaukee Police detective, Shannon Lewandowski, also
testified at the trial. (Id. at 26.) She was working
the late shift on March 10, 2010-midnight to 8:00 a.m.-and
was dispatched to 70th and Melvina, the second
part of the shooting scene where Officer Spano had stopped a
car. (Id. at 29-30.) The car was a four door, maroon
Grand Prix. (Id. at 30.) Lewandowski noted that the
description over the radio had been a burnt orange car.
(Id.) Lewandowski identified Davis as the driver of
the car and indicated there was another individual present.
(Id. at 31.) Officer Spano reported that he had
stopped the vehicle and approached the driver's side, at
which time he noticed a casing “wedged in the crease
where the trunk lifts and the window comes down of the back
of the window.” (Id. at 31-32.) The shell
casing was on the back of the car. (Id. at 33.) She
could not state exactly how it got there. (Id. at
45-46.) It was a 9 millimeter casing. (Id. at 35.)
Lewandowski testified that she then communicated with the
detectives at the other scene about what they had recovered.
(Id. at 36-37.) She then went to the hospital where
Washington was being treated to interview him. (Id.
at 37-39.) Davis was arrested for being the shooter;
Lewandowski noted that Washington had identified Davis from a
photo array. (Id. at 40.)
further testified that they did not test Davis' hands or
the car for gunshot residue and that it was not something the
department usually does. (Id. at 40-41.) No gun was
recovered when the car was searched nor when either occupant
of the car was searched. (Id. at 42.)
employee at the State Crime Lab, Reginald Templin, testified
next at the trial. (Jury Trial Tr., September 14, 2010 P.M.,
Docket # 14-8 at 5.) He testified that he worked as a firearm
and tool mark examiner and was in charge of the Firearm and
Tool Mark section in the laboratory. (Id.) He
explained that his job is to examine and report on firearms
and any firearm related evidence. (Id.) Templin
examined the shell casings recovered at the scene
(id. at 10-11) and concluded that all seven casings
were fired from the same firearm (id. at 11).
Luke O'Day, a detective with the Milwaukee Police
Department, testified. (Id. at 13.) On March 10,
2010, he was dispatched to St. Joseph's hospital to meet
up with a victim, Jovan Washington, and conduct an interview.
(Id. at 15.) O'Day testified that Washington
appeared to be in pain and had a graze wound to the right
side of his head and an impact wound between his shoulder
blades. (Id. at 16.) He conducted a photo array with
Washington, and Washington identified Davis. (Id. at
testified that upon examining Washington's vehicle, a red
Chevy Tahoe, they recovered a jacketing from the driver's
side passenger seat (id. at 20), a jacketing in the
rear cargo area of the Tahoe (id. at 21), and a
“fired deformed lead projectile bullet” in the
driver's seat (id.). He testified that there was
damage to the car, mostly centered on the passenger side rear
quarter panel. (Id. at 22.) O'Day returned to
see the Tahoe on March 12, 2010 with an identification
technician and used trajectory rods, which are used to
determine the flight path of a bullet as well as to determine
the angle in which a bullet was fired. (Id. at 23.)
O'Day testified that once they used the trajectory rods
on the Tahoe, he concluded that all of the bullets traveled
from the rear right of the vehicle to the front left of the
vehicle. (Id. at 27.) He testified that “the
shooter would have been placed at an angle behind the
vehicle, ” consistent with cars being in lanes next to
each other and the front of the shooter's vehicle
overlapping a little bit with the back of the vehicle that
was shot. (Id. at 27-28.) O'Day also testified
that the bullets' trajectory came from a lower angle,
suggesting that the second vehicle (the shooter's
vehicle) was a sedan rather than a taller SUV like
Washington's Tahoe. (Id. at 29.)
then testified about the casing lodged between the trunk lid
and the back window. (Id. at 29-30.) He believed
that the location of the casing indicated that the person who
fired the gun did so from the driver's side of the
vehicle. (Id. at 30.) He explained that when a
semiautomatic handgun ejects the casing, it goes up and out
the right side of the handgun. He did not believe that if the
gun was fired by someone leaning out of the passenger window
that the casing would have landed on the trunk lid.
(Id.) He also noted that if the passenger had put
the firearm over the top of the vehicle, he would expect that
the impacts on the Tahoe would have been much higher.
(Id. at 31.) O'Day testified that he did not
believe a casing could have fallen on to the trunk if the gun
had been fired out of a vehicle in front of Davis'.
(Id. at 32-33.) He also did not believe that someone
standing still on the sidewalk could have fired shots
matching the trajectories they found. (Id. at 36.)
the jury trial, Davis was convicted of all three crimes:
first degree intentional homicide as party to a crime while
armed with a dangerous weapon; first degree recklessly
endangering safety as a party to the crime with a dangerous
weapon; and felony bail jumping on September 15, 2010.
(Judgment of Conviction, Docket # 14-1.) He was sentenced to
concurrent sentences on all of the charges, the longest of
which (for the attempted homicide) is 26 years-16 years of
initial confinement and 10 years of extended supervision.
appealed his convictions. His appellate counsel filed a
no-merit report, pursuant to Anders v. California,
386 U.S. 738 (1967). (Ct. App. Dec. in 2012AP120-CRNM, Docket
# 1-1 at 1-2.) Davis filed multiple responses, and counsel
filed two supplemental no-merit reports. (Id. at 2.)
The court of appeals examined Davis' three arguments: a
challenge to the sufficiency of the evidence; challenges to
the effective assistance of trial counsel; and a claim that
he was sentenced on inaccurate information. The court of
appeals upheld his conviction, and Davis petitioned for
review with the Wisconsin Supreme Court (Docket # 14-3),
which was denied on November 26, 2013 (Docket # 14-4). On
November 17, 2014, Davis filed the petition presently before
habeas corpus statute was amended by the Antiterrorism and
Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 100
Stat. 1214, which provides in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court ...