United States District Court, E.D. Wisconsin
DAMEN R. LOWE, Petitioner,
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
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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.
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).
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.
Judge Duffin's Recommendation
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)).
Denial of right to cross-examine/present a defense
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.
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.
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.
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.
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.
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.
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.
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.
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