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Lowe v. Clements

United States District Court, E.D. Wisconsin

March 19, 2019

DAMEN R. LOWE, Petitioner,
v.
MARC CLEMENTS, Respondent.

          ORDER ADOPTING JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 18), OVERRULING OBJECTIONS (DKT. NO. 19), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DISMISSING PETITION

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         I. Background

         A. Procedural History

         On April 10, 2015, the petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §2254. Dkt. No. 1 at 1. He raised five grounds for relief: (1) the trial court violated his constitutional right to cross-examine witnesses against him and present a complete defense; (2) his trial counsel was ineffective; (3) the State failed to disclose exculpatory evidence; (4) Wis.Stat. §948.025 violated his right to jury unanimity; and (5) the trial court's jury instructions misled the jury. Id. at 6-9. On May 12, 2015, this court screened the petition and allowed the petitioner to proceed on all five grounds. Dkt. No. 7. The case was fully briefed on December 17, 2015 but due to the court's heavy caseload, the case sat for quite some time. It was eventually referred to Magistrate Judge Duffin for review. Dkt. No. 17. On June 11, 2018, Judge Duffin issued a report, recommending that this court dismiss the petition and deny the petitioner a certificate of appealability. Dkt. No. 18. The petitioner has objected. Dkt. No. 19.

         B. Facts

         Judge Duffin summarized the relevant facts in his report, and while the petitioner's objection states that he “reiterates the Statement of Facts from his Brief in Support of Petition and Reply Brief, ” dkt. no. 19, he does not specifically object to Judge Duffin's factual recitation. The court recounts Judge Duffin's statement of facts below:

Damen Lowe, then both a Racine police officer and school security officer, physically and sexually assaulted his adopted daughter, V.A.L. Lowe was very strict with V.A.L. He restricted her cell phone and social media usage and allowed her to socialize with only certain boys. Lowe was able to keep close tabs on V.A.L. because he worked as a security guard at his daughter's high school.
In April of 2009 Lowe learned his daughter was failing history and that she had been using a classmate's cell phone to send text messages. Lowe took his daughter out of class, brought her to the teachers' lounge, forced her to the ground, handcuffed her, and demanded to know who she had been texting. She refused to tell him. Lowe then escorted V.A.L. out of the teacher's lounge, through the school, and out to his car in order to take her home, keeping her handcuffed the whole time and threatening to punch her in the face if she continued to ask that he loosen the handcuffs. Later that evening, at home, V.A.L. reported that Lowe struck her twice on her leg with an open hand and hit her with a belt on her arm and thigh.
V.A.L. made plans to run away, and the following day told a friend that Lowe had been sexually abusing her. V.A.L. called Child Protective Services (CPS) and reported physical, but not sexual, abuse. That same day she also spoke with detectives and again did not report sexual abuse. It was not until days later that V.A.L. reported to CPS that Lowe had been sexually assaulting her.
According to V.A.L., the sexual abuse began with Lowe showing her pornography when she was in fifth grade. Lowe began having sexual contact with V.A.L. when she was in sixth grade. Lowe would require her to engage in sexual acts in exchange for privileges. This included, for example, instances where she wanted to go out with friends, permission to get her tongue pierced, and one instance where Lowe had V.A.L. masturbate him in exchange for letting her listen to a CD in the car.
Lowe was arrested on May 4, 2009 and charged with repeated sexual assault of a child, incest, four counts of exposing a child to harmful material, and one count of child abuse. Shortly after V.A.L. first made her allegations against Lowe, her mother informed her that Lowe was not actually her biological father; Lowe had adopted V.A.L. Lowe proceeded to trial, where his defense was that V.A.L. fabricated the sexual abuse as a means to escape Lowe's strict supervision and discipline. Following a six-day jury trial, Lowe was found guilty. He was acquitted of three additional charges of child abuse.

Dkt. No. 18 at 1-3 (internal citations omitted).

         The petitioner appealed his conviction. Dkt. No. 1-1 at 6. He raised the same five issues in the direct appeal that he raises in this petition. Id. The Court of Appeals thoroughly analyzed each issue, concluded that the petitioner had waived his challenge to the jury instructions and ruled against him on the other issues. The petitioner sought review from the Wisconsin Supreme Court. Dkt. No. 10-6. While the petition listed all five issues, id. at 8-9, it presented no argument regarding the appellate court's ruling that the petitioner had waived the jury instruction issue. The Wisconsin Supreme Court denied the petition for review. Dkt. No. 1-2.

         C. Judge Duffin's Recommendation

         The Wisconsin Court of Appeals issued a twenty-six-page decision affirming the petitioner's conviction. Given that, Judge Duffin's job at the federal habeas stage was to determine whether the Court of Appeals' decision was contrary to, or an unreasonable application of, clearly established federal law, or whether the decision was based on an unreasonable determination of the facts given the evidence before the trial court. Dkt. No. 18 at 3-4 (citing Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014); 28 U.S.C. §§2254(d)(1), (2)).

         1. Denial of right to cross-examine/present a defense

         Judge Duffin explained that the petitioner's defense theory was that, to escape the petitioner's strict parenting techniques, his daughter had lied about the petitioner having sexually abused her. Dkt. No. 18 at 4. The petitioner had asked the trial court to admit, or to allow cross-examination about, printouts from V.A.L.'s MySpace page and police reports indicating that V.A.L.'s mother had called the police about V.A.L. Id. While the trial court admitted other evidence of V.A.L.'s misbehavior, the conflicts between V.A.L. and the petitioner, and the activities V.A.L. engaged in after the petitioner's arrest of which the petitioner disapproved, it did not allow the petitioner to introduce posts and photos showing some specific instances of those activities. Id. at 4-5. The court also excluded evidence of phone calls V.A.L.'s mother had made to the police after the petitioner's arrest, complaining of problems she was having with her daughter. Id. at 5.

         The Wisconsin Court of Appeals found that the trial court had given the petitioner “‘broad leeway' regarding evidence about events prior to the allegations.” Dkt. No. 1-1 at 4. It explained that the trial court allowed the defense to cross-examine V.A.L. “at length” about things that happened before she made the sexual assault allegations: “about engaging in activities of which [the petitioner] did not approve and about her refusal to follow [the petitioner's] rules.” Id. V.A.L. had testified about texting boys without her father's approval, hanging around with boys who drank and used drugs and had criminal records, having a boy over without her father's permission, leaving the house to see a boy while her father was working, using MySpace after her father told her to stop and more. Id. at 4-5. The Court of Appeals explained that while the trial court had excluded the MySpace posts and police reports from after V.A.L. alleged that the petitioner assaulted her, it also had allowed cross-examination about V.A.L.'s post-allegation use of the MySpace account and other activities of which her father did not approve, “but limited the cross-examination to prohibit questioning about her drug and alcohol use and sexual activity.” Id. at 5-6. The trial court allowed the defense to question V.A.L. about the following post-allegation activity: resuming the use of MySpace in a way that V.A.L.'s father had prohibited, and behaving in ways and having contact with people that V.A.L.'s father disapproved of. Id. at 6.

         The Wisconsin Court of Appeals explained that while the Constitution grants a criminal defendant the right to effectively cross-examine witnesses and present favorable testimony, those rights were not absolute. Id. at 7 (citing Davis v. Alaska, 415 U.S. 308, 318 (1974) (right to cross-examination); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (right to admit favorable testimony); State v. Pulizzano, 155 Wis.2d 633, 645 (Wis. 1990) (rights not absolute). The evidence a defendant presents still must be more probative than prejudicial. Id. (citing State v. McCall, 202 Wis.2d 29, 42 (Wis. 1996)). The court explained that it had reviewed the trial court's evidentiary rulings for an erroneous exercise of discretion, citing State v. Rhodes, 336 Wis.2d 64, 75 (Wis. 2011), and noted that even when a defendant makes a constitutional challenge to an evidentiary ruling, trial judges retain broad discretion “to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant, ” citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Id. at 8.

         After reviewing the relevant case law, the Court of Appeals concluded that the defendant was able to “fully explore V.A.L.'s pre-allegation behavior, including intense conflict with [the petitioner].” Id. at 11. It listed the information defense counsel had been able to elicit at trial, and concluded that “counsel was able to lay ample foundation for the theory that, at the time of the allegations, V.A.L. was in the habit of breaking [the petitioner's] rules and arguably had reason to want to get out from under [the petitioner's] control.” Id. The appeals court also reiterated that the trial court had not prohibited all cross-examination about post-allegation conduct. Id.

         The appellate court also concluded that the trial court had not abused its discretion in weighing the probative versus prejudicial impact of the post-allegation evidence. Id. at 12. The appellate court agreed that because the defendant had proved that V.A.L. did things post-allegation of which the petitioner did not approve, the specifics of how she did those things would have been cumulative, and could have confused the jury. Id. Regarding the trial court's concerns that the excluded material constituted an improper attack on V.A.L.'s character, the court of appeals concluded that the trial court had properly weighed the evidence in that regard, and had not erred. Id. at 14-15.

         The court of appeals came to the same conclusion regarding the trial court's decision not to allow the defense to use the MySpace pages or post-allegation police contacts to impeach V.A.L.'s mother. Id. at 16. The appellate court explained the ways in which the trial court had properly exercised its discretion. Id. at 16-17. The court found that one of the petitioner's appellate arguments-that the excluded evidence would have revealed that V.A.L. might have lied on the stand to avoid being charged with things like breaking curfew or underage drinking-had not been raised at the trial level, and thus was waived on appeal. Id. at 17-18.

         The court of appeals concluded that even if it had found that the trial court abused its discretion in excluding the evidence, such error would have been harmless, because the excluded evidence was cumulative and defense counsel had been able to elicit plenty of evidence to support the defense theory. Id. at 18-19.

         The petitioner asserts that the exclusion of this evidence violated his rights to cross-examine witnesses and to present a defense, allowing V.A.L. and her mother to testify “falsely under the protections of the court's ruling.” Id. at 6 (quoting petitioner's brief, Dkt. No. 3 at 10). The petitioner wanted to be able to ask his daughter why she had been able to run away, break curfew, cause disturbances and drink without being arrested or cited, and to ask why the police were called five times about this behavior without any referral to juvenile authorities. Id. The petition says that it was important for the petitioner to be able to raise these issues, because it would have allowed him to rebut the testimony of his daughter and her mother that V.A.L. was just being a typical teen, and was not acting out. Id.

         Judge Duffin observed that the Wisconsin Court of Appeals had considered these arguments on direct appeal, and he walked through the salient portions of the court's decision. Dkt. No. 18 at 5-6. Judge Duffin, like the court of appeals, recounted the applicable federal law governing the Sixth Amendment right to cross-examination and to present relevant testimony. Id. at 7-8. He agreed that the most relevant evidence of V.A.L.'s motive to fabricate was the evidence of the conflicts between her and the petitioner occurring prior to her allegations of sexual assault, and observed that there was nothing in the record to show that the trial court had limited the scope of cross-examination on that topic. Id. The court of appeals concluded that the trial court had excluded the some of the post-allegation evidence because it was irrelevant and was an attempt to “trash” V.A.L., but noted that the trial court had allowed the petitioner to question V.A.L. about her use post-allegation use of the MySpace account, her behavior and her associations. Id. at 5-6. Judge Duffin concluded that the court of appeals' conclusions did not constitute an unreasonable application of federal law. Dkt. No. 18 at 8. He accepted the petitioner's argument that post-allegation conduct might have had some relevance to V.A.L.'s motive to continue to accuse the petitioner, and to testify at his trial. Id. at 9. But he concluded that that relevance was “marginal at best, ” noting that the petitioner himself had testified that after the incident at the school, he'd told V.A.L. to go live with her mother, and she'd refused. Id. Judge Duffin noted that if V.A.L. had been so desperate to get away from her father, she could have followed his order that night and left; she did not need to fabricate “a long history of sexual assaults.” Id. at 9-10. He noted that the only thing the trial court had kept from the jury about the post-allegations MySpace posts “were the details of what specifically was posted on her MySpace page.” Id. at 10. He agreed with the court of appeals that the excluded evidence carried a significant risk of confusing the issues (from whether V.A.L.'s allegations of sexual assault were credible to whether she was a “bad” teenager) and misleading the jury (as to whether V.A.L. did what she claimed on MySpace that she had done, or was going to do). Id. Finally, he found it reasonable that the trial court ...


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