United States District Court, E.D. Wisconsin
OLU A. RHODES, Petitioner,
MICHAEL MEISNER, WARDEN, Respondent.
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1), DISMISSING CASE, AND GRANTING
CERTIFICATE OF APPEALABILITY.
PAMELA PEPPER United States District Judge.
Olu A. Rhodes filed a petition for a writ of habeas
corpus under 28 U.S.C. §2254, arguing that at
trial, the Milwaukee County Circuit Court violated his rights
under the Sixth Amendment Confrontation Clause by cutting off
his lawyer's cross-examination of a witness called by the
state. The respondent did not raise in his
response brief the issue of whether the alleged error was
harmless for purposes of habeas review. The
petitioner argued in reply that the respondent had waived the
harmless error issue by failing to raise it, and urged this
court not to consider it. The court subsequently directed the
parties to brief the issue of whether the trial court's
alleged constitutional error was prejudicial.
court denies the petitioner's petition for a writ of
habeas corpus, because while it concludes that the
trial court's refusal to allow the petitioner to
cross-examine one witness on the issue of motive did
constitute constitutional error, that error did not have a
substantial and injurious effect or influence on the
State Trial Proceedings
petitioner and his half-brother, Jelani Saleem
(“Saleem”), were tried together for the shooting
death of Robert Davis (“Davis”) and the shooting
injury of Jonte Watt (“Watt”). Dkt. No. 16 at 2.
During the trial, the state presented a motive theory to
explain the shooting: the brothers shot and killed Davis
because they thought Davis was responsible for inciting two
women to beat the petitioner's sister, Nari Rhodes
(“Nari”), and they shot Watt accidentally as he
stood nearby. Id. at 2-3. The petitioner's
defense was that he was not involved in Davis' death.
Id. at 3.
state called Nari as its own witness and tried to elicit
testimony from her to support the state's motive theory,
which it raised for the first time during its opening
statement. The state asked Nari if her brothers knew of the
beating, and she testified that they did. Dkt. No. 15-5 at
119. The state then asked whether that knowledge had
“any impact” on the petitioner or Saleem.
Id. at 120. Nari testified, “No.”
Id. The state followed up, asking, “Well, did
they become angry? Either of them?” Id. Again,
Nari testified, “No.” Id. The state
continued questioning Nari about her brothers' reaction
by asking, “They just took it calmly?” Nari
testified, “Yes.” Id. Persisting, the
state asked, “That their sister had just been
beaten?” Id. Again, Nari testified,
“Yes.” The trial court then called a recess.
the recess, the state returned to its motive theory,
reminding Nari that she had testified that the beating had no
effect on her brothers. Dkt. No. 15-6 at 9. Nari replied,
“They were more mad at me ‘cause they said that I
already knew that I was into it with Nancy Segura, I had no
business going over there to try to get back any
property.” Id. The state then asked, “So
they were mad at you because you got beat?”
Id. Nari replied, “They weren't mad at me
. . . for being beaten, no. They were mad at me for putting
myself in the predicament to be beaten.” Id.
course of the state's direct examination, Nari had
testified that she and Davis “had a lot of domestic
violence problems.” Dkt. No. 15-5 at 107. The state did
not follow up on that issue, but the petitioner's
attorney did. In response to the state's attempt to prove
its motive theory by questioning Nari, the petitioner's
lawyer sought to cross-examine Nari about a time that Davis
had beaten Nari. The petitioner's attorney asked the
following series of questions:
Q: Now, one of the other things you told your brothers, when
you were describing what happened, is that Robert Davis was
not involved in the attack upon you, right?
Q: You did tell us . . . on direct examination that there had
been domestic violence or violence between yourself and Davis
Q: Before that date?
Q: In fact, Mr. Davis had attacked you previous to April 3,
2006; is that right?
Q: And you - On direct examination you said something to the
effect that there had been a lot of that; is that right?
A: Yes. * * * Q: [I]n your conflict with Mr. Davis, have
there been other times when you've been injured?
Q: And what injuries had you received?
A: One side-My orbital bone in my eye was broken and it was
like really bad.
Dkt. No. 15-6 at 19-20, 33.
point, the state objected, and the trial court called a
sidebar. Id. at 34. The court cut off further
questions on this subject. In the subsequent proffer after
the sidebar discussion, the petitioner's lawyer stated
that he had no intention of raising this subject, but had
pursued this line of questioning in response to the
state's motive theory and Nari's direct testimony.
Id. at 88-90. The petitioner's lawyer identified
the questions that he would have asked on cross-examination,
and proffered the testimony he sought from Nari:
I asked Nari Rhodes about a particular incident. She said her
orbital bone had been broken. That's a fairly serious
injury. My next question would have been, well, what's
your orbital bone? The question-She would have described as
something around her eye.
After that I would have asked her did she make her brothers
aware of that injury and who would have inflicted it and she
would have said yes. There was no response from her brothers.
That was proper for me to try and rebut this motive
information that the State has come forward with. It
wasn't - I - I didn't get beyond that initial
inquiry. I mean, she said that he damaged her orbital bone. I
was not allowed to go any further than that.
I would have concluded that line of questioning within a few
minutes. I was not trying to go, mindful of the court's
previous ruling, on an injury-by-injury circumstance.
Id. at 88-89.
state raised two objections to this line of questioning.
First, it argued that it did not have notice of that
particular incident (although Nari was the state's own
witness). Second, the state raised a concern it had expressed
before any evidence was introduced-that the defense would
make “a history of domestic abuse” by Davis an
issue at trial. Id. at 90. The state further argued
that this evidence was “904.04 evidence, it's other
acts . . . [a]s the court ruled in chambers prior to the
evidence being taken in this case, that the parameters were a
general mention can be made of the domestic abuse. It's
in the record now and [the state was] objecting to any
specific types of evidence regarding 904.04
evidence.” Id. at 90-91.
trial court agreed with the state's recitation of the
court's prior decision. The court then stated that the
possibility of jury confusion had been a concern from the
beginning of the trial, which was why the court had made an
initial “ruling that we not get into
evidence-extraneous evidence that would mislead the jury on
other issues in a trial within a trial which is the
concern.”Dkt. No. 15-6 at 91-92. The trial court
permitted a general reference to the fact that there had been
other instances of domestic abuse involving Nari and Davis,
but would not permit the petitioner to make an
instance-by-instance inquiry into that subject. Id.
at 87-88. The court indicated that the parties apparently had
agreed (or had been ordered) to avoid the subject altogether.
Id. at 87. Because Nari had raised the issue in her
direct testimony, however, the trial court stated that it
believed that it had given the petitioner an
“opportunity for fair response.” Id.
Because “there was no order to admit” testimony
about specific instances of abuse, the court prevented any
further questioning. Id. at 88.
state presented substantial evidence that the petitioner was
involved in the shooting and fired gunshots at Davis and
Watt. Milwaukee Police Officer Eugene Reyes was the first
uniformed officer on the scene of the shooting, within three
minutes of receiving notice that a shooting had been called
in. Dkt. No. 15-3 at 11. Reyes found Davis lying in the
street and Watt sitting down on the sidewalk with a gunshot
wound in his leg. Id. at 7-9. Reyes asked Watt if he
had been shot. Id. at 9. Reyes testified that Watt
was mumbling and said, “they shot my guy, they shot my
guy.” Id. Watt told Reyes that he was
referring to “Olu and Jelani.” Id. at
10. Watt later identified the petitioner and Saleem in photo
arrays. Dkt. No 15-6, at 96-112
testified that he, Davis and Dominique Walker (Watt's
girlfriend and the mother of his child) were driving in a
car, and Watt noticed that the petitioner was tailing them in
a separate car. Dkt. No. 15-3, at 72. After a number of turns
and a brief stop, they arrived at Watts'
grandmother's house, the scene of the shooting.
Id. at 81-82. Watt and Davis got out of the car,
while Walker remained inside. Id. at 83. Watt
testified that as he and Davis tried to enter the house, he
saw the petitioner and Saleem approach the house with guns.
Id. at 90-101. Watt testified that he began to hear
“a little popping noise” and saw the petitioner
shooting at Watt and Davis. Id. at 102-03. Watt and
Davis ran off the porch together, right past the petitioner
and Saleem. Id. at 106-08. Watt heard additional
shots while he was running away. Id. at 113. At some
point, Watt realized that he had been shot in the leg, and
eventually he fell to the ground. Id. at 114-15. He
also knew that Davis had fallen down, but did not see Davis
get shot. Id. at 112-13. Watt testified he was
positive that the petitioner and Saleem were the people who
shot Watt and Davis. Dkt. No. 15-4, at 27-28. Walker also
testified that the petitioner and Saleem were the people who
shot Davis and Watt. Id. at 128-50. Her testimony
generally was consistent with Watt's, and she identified
both the petitioner and Saleem in photo arrays. Id.
Sprint Nextel witness testified that Sprint produced call
detail records for a cell phone number associated with
Saleem, covering the days surrounding the shooting.
Id. at 4-17. Sprint's representative also
explained how to interpret the records, including call
location and time information. Id. Using
Sprint's call location and time information, a Wisconsin
Department of Justice analyst plotted Saleem's cell phone
locations on a map to show that the cell phone had been used
in the neighborhood of the shooting in the relevant time
frame. Dkt. No. 15-7 at 58-75.
Police Detective David Salazar testified that Letitia Dotson
(the mother of the petitioner's daughter) had told him
that the petitioner had called Dotson on the day of the
shooting, and had told Dotson that the petitioner had shot
Davis. Dkt. No. 15-6 at 46-48. Detective Willie Huerta, who
participated in the interview with Dotson, corroborated
Salazar's account. Id. at 142-47. Dotson
testified that she remembered talking to the petitioner on
the telephone on the day of the shooting, and remembered that
the petitioner said someone got shot. Dkt. No. 15-5 at 55-56.
She either could not remember much more of what he said,