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Davis v. Pollard

United States District Court, E.D. Wisconsin

November 30, 2016



          NANCY JOSEPH United States Magistrate Judge.

         James 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.


         Davis 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, as follows:

         Jovan 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.)

         Because 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.)

         Milwaukee 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.)

         Spano 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.)

         Milwaukee 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.)

         Another 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.)

         Lewandowski 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.)

         An 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).

         Next, 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 18-19.)

         O'Day 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.)

         O'Day 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.)

         Following 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.

         Davis 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 me.


         The 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 ...

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