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Rhodes v. Meisner

United States District Court, E.D. Wisconsin

May 30, 2017

OLU A. RHODES, Petitioner,
v.
MICHAEL MEISNER, WARDEN, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), DISMISSING CASE, AND GRANTING CERTIFICATE OF APPEALABILITY.

          HON. PAMELA PEPPER United States District Judge.

         Petitioner 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.[1] 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.

         The 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 jury's verdict.

         I. BACKGROUND

         A. State Trial Proceedings

         The 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.

         The 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.

         After 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.

         In the 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?
A: Yes.
Q: You did tell us . . . on direct examination that there had been domestic violence or violence between yourself and Davis before, right?
A: Yes.
Q: Before that date?
A: Yes.
Q: In fact, Mr. Davis had attacked you previous to April 3, 2006; is that right?
A: Yes.
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?
A: Yes.
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.

         At this 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.

         The 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.”[2] Id. at 90-91.

         The 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.”[3]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.

         The 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

         Watt 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. at 155-57.

         A 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.

         Milwaukee 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, ...


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