United States District Court, E.D. Wisconsin
ORDER DENYING MOTION FOR A NEW TRIAL (DKT. NO.
Pamela Pepper, United States District Judge.
November 27, 2018, after a two-day trial, a jury found the
defendant guilty on both counts of the indictment-being a
felon in possession of a firearm and assaulting a United
States Postal Worker. Dkt. No. 70. The defendant timely filed
a motion for new trial. Dkt. No. 79. The motion asserts that
the court improperly characterized (and excluded) certain
evidence as alibi evidence. The motion also contends that if
the court correctly excluded the evidence, the defendant is
entitled to a new trial because he received ineffective
assistance of counsel. The court will deny the motion.
November 21, 2017, the grand jury returned a two-count
indictment charging the defendant with one count of being a
felon in possession of a firearm and one count of assaulting
a United States postal worker. Dkt. No. 1. The defendant
filed two motions-a motion to suppress statements and a
motion to suppress physical evidence. Dkt. Nos. 9, 10.
April 26, 2018, Magistrate Judge Duffin issued a report,
recommending that this court deny in part and grant in part
the motion to suppress statements, and that it deny the
motion to suppress physical evidence. Dkt. No. 24. Both the
government and the defendant objected. Dkt. Nos. 25, 28. On
July 19, 2018, this court adopted Judge Duffin's report
and recommendation in part. Dkt. No. 31. It granted the
motion to suppress statements to the extent that the motion
asked the court to suppress the statements the defendant made
on the walk to the squad car and in the squad car.
Id. The court denied that motion to the extent that
it asked the court to suppress statements made during the
pat-down of the defendant's porch. Id. The court
denied the motion to suppress physical evidence. Id.
to trial, the parties filed a joint final pretrial report
with accompanying motions in limine. Dkt. Nos.
41-43. One of the government's motions in limine
asked the court to preclude the defendant from presenting
alibi evidence. Dkt. No. 42 at 3. The motion stated:
To date, [the defendant] has not provided a notice of alibi
pursuant to Fed. R. Crim. Pro. 12.1. The United States
requests advance notice from [the defendant] of any alibi. In
the absence of such notice, the United States requests the
Court preclude testimony in support of an alibi for any of
the charged crimes.
Id. At the November 8, 2018 final pretrial
conference, the court denied the defendant's motion
in limine and-without objection from defense
counsel- granted the government's motions in
limine. Dkt. No. 50.
began on November 26, 2018. Dkt. No. 76. As the government
noted in its response to the new trial motion, the evidence
indicated that while postal worker Kevin Phillips was making
his rounds on June 27, 2017, the defendant's pitbull ran
toward him, and the postal worker sprayed the dog with dog
spray. Dkt. No. 82 at 2. The defendant's wife learned of
this, and contacted the defendant, who was at work at the
Salvation Army about a mile away. Id. The defendant
drove his employer's white Dodge Caravan from his job
toward his home, and on the way, encountered the postal
worker. Id. The defendant (in the van) asked the
postal worker (on foot) why the postal worker had sprayed his
dog; the postal worker responded, and the defendant said he
would be back. Id. The defendant then went to his
home, went inside, came out and came toward the postal
worker, yelling at him. Id. at 3. When the postal
worker asked the defendant if the defendant was threatening
him, the defendant responded, “no, this is a threat,
” and pulled out a gun, pointing it at the postal
worker. Id. The defendant then went back to his
home. As it turned out, the defendant was a prohibited person
who could not possess a gun. Id.
postal worker testified on cross examination that the
“confrontation” happened “[a]bout 5
o'clock in the afternoon, the evening, ” and that
he was “positive” about the time. Dkt. No. 76 at
p. 56, lines 17-22. He also testified that his supervisor
called 911 after the incident. Id. at p. 57, lines
3-6. The government presented evidence that the postal
worker's supervisor called 911 at 4:19 p.m. Id.
at p. 94 at lines 24-25; 95 at lines 10-11, 22.
the government rested its case, the defendant made an oral
motion for acquittal under Fed. R. Crim. P. 29. Id.
at 138. The court denied that motion. Id. The
government then alerted the court that it had not received
any notice of an alibi witness from the defendant and it
renewed its motion to preclude alibi evidence; the defendant
responded that he wouldn't be presenting any alibi
witnesses. Id. at 139.
next, day, during the defense's case in chief, defense
counsel called the defendant's wife, Lorenzya Polnitz.
Dkt. No. 77 at p. 28. She testified that the mail
“usually came” in the late afternoon,
“around 2:00 or 3:00.” Id. at p. 31,
lines 17-19. She confirmed that the defendant came home after
she called to report that the postal worker had sprayed the
dog, then left the house. Id. at p. 32, lines 2-25;
p. 33, lines 1-23. At that point, defense counsel began
asking Ms. Polnitz about what the defendant did after his
encounter with victim postal worker Kevin Phillips.
Id. at p. 33, lines 12-25; p. 34, lines 1-12. The
government objected to this line of questioning and, after
dismissing the jury, the court heard argument from the
parties. Id. at p. 35, lines 20-25; pp. 36-39.
Defense counsel argued that he should be allowed to introduce
a timesheet from the Salvation Army which showed when the
defendant clocked into and out of his job at the Salvation
Army. Id. at p. 36. Counsel argued that the time
sheet was relevant the question of timing, asserting that it
undermined the victim postal worker's recollection of
when the encounter with the defendant occurred. Id.
The court first reiterated that, as it had told defense
counsel at sidebar, the defendant's wife was not the
appropriate witness through which to introduce a business
record from the Salvation Army. Id. at p. 36, lines
18-25. The court's bigger concern was that, despite
arguing that he did not plan to present an alibi defense,
defense counsel appeared to want to use the timesheet to show
that the defendant could not have “been the one who
pulled the gun because he was somewhere else . . . .”
Id. at p. 37, lines 1-7. Defense counsel said that
the timesheet wasn't
reflective of whether or not [the] encounter happened. If an
encounter happened, it's indicative of when things were
going on. It gives the jury a sense of who was where at what
time and not to show that [the defendant] was somewhere else
when this event happened, but just to show that, you know,
there's a confusing set of circumstances here with the
alleged victim's ability to recall a time. And this just
kind of sets some concrete things as to at least when [the
defendant] left work for the day, what time that was.
Id. at p. 37, lines 12-21. After hearing brief
argument from the government, the court concluded that the
defendant now was trying to present an alibi defense for
which he had not given notice; the court concluded that it
had ruled twice on the issue, and that it was not going to
allow the defense to question the defendant's wife about
the Salvation Army timesheet. Id. at p. 38, lines
11-13. Defense counsel nonetheless stated,
Judge, I guess I just want to for the record make one thing,
one more point; that is, that the victim says that this
happened. His testimony was this happened at about 5:00 p.m.
He's certain of that. The fact that [the defendant] left
work for the day at 4:28 is not an alibi, doesn't provide
an alibi as to when, you know, that he was somewhere else
when this crime happened.
Id. at p. 38, lines 14-20. The court responded:
What you're saying it could impeach [the postal
worker's] recollection as to timing. You can also do
that. You've already asked Ms. Polnitz from her own
recollection a couple of questions about what she recalls in
terms of when her husband came home, how long it took him to
get there, and when he left. That is going to have to
suffice. I understand it can also be used for impeachment.
Again, she's not the right witness to do it through and
in this instance showing who was where and when I agree with
the Government is an alibi where there was no ...