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Riker v. Boughton

United States District Court, E.D. Wisconsin

December 31, 2019

SEAN A. RIKER, Petitioner,
v.
GARY BOUGHTON, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254 (DKT. NO. 1), DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          HON. PAMELA PEPPER Chief United States District Judge.

         In November 2011, a Racine County jury convicted the petitioner of sixteen charges related to the physical and sexual abuse of his then-wife and two stepdaughters, CJ and KS. Dkt. No. 1. This habeas petition alleges that the state presented insufficient evidence to convict him of nine of the sixteen charges and that the court imposed an excessive sentence in violation of the Eighth Amendment. Id. The Wisconsin Court of Appeals did not unreasonably apply the law in finding that the state presented sufficient evidence to convict the petitioner. The court will dismiss the petition and decline to issue a certificate of appealability.

         I. BACKGROUND

         A. Underlying Case

         At about 10:45 a.m. on November 10, 2009, Tayler Riker came to the Racine County Sheriff's Department with her four children-CJ, KS, KR and SR-to file an assault complaint. Dkt. No. 29-1 at 148-149. She was, according to the officer who assisted her, upset, shaking, crying and injured. Id. at 151. The officer took photos of the injuries. Id. At trial, Tayler testified that in November 2009, she, the petitioner and the children had moved to Wisconsin. Dkt. No. 29-3 at 66. She testified that after she married the petitioner, he had begun to abuse the children, and that it escalated as the relationship went on. Id. at 73. She described various incidents of physical injury and sexual abuse over the years before the family moved to Wisconsin. Id. at 67-81. She told the jury that once they arrived in Wisconsin, the petitioner became more stressed and agitated, and that he abused her and the children. Id. at 86-97. She described an incident that occurred on November 5, 2009, when the family arrived home from shopping to find that one of the children had locked the keys in the house, and how the petitioner reacted by physically abusing her and the children. Id. at 87-97. These events included an incident where the petitioner made CJ suck up a urine stain with her mouth. Id. at 97-98. She described another incident several days later, where the petitioner sexually abused CJ, and hit her, while driving. Id. at 98-100. She described an incident on November 9, 2009 where the petitioner broke a broom and threatened her with the stick, and where the petitioner threatened to kill her. Id. at 100-105. She also described an incident where the petitioner held a gun to several family members' heads. Id. at 107-110.

         Later on November 10, 2009, police apprehended the petitioner at the family's residence. Id. at 177-181.

         Racine County charged the petitioner in a sixteen-count criminal complaint. State of Wisconsin v. Sean A. Riker, Case Number 2009CF001490, Racine County Circuit Court, available at wcca.wicourts.gov (last visited Nov. 12, 2019). The complaint alleged three counts of first-degree recklessly endangering safety, one count of possession of firearm by a felon, one count of battery, one count of strangulation and suffocation, five counts of child abuse, two counts of causing mental harm to a child, one count of repeated sexual assault of the same child, one count of sexual contact with person under the age of thirteen and one count of possessing a short-barreled shotgun/rifle. Id. The jury trial took place in November of 2011.

         1. Trial

         The state presented evidence from Racine County Sheriff's Department investigators, including detective James Muller, who took the intake interview with Tayler Riker. Dkt. No. 29-1 at 151. The jury saw photographs of Tayler's bruises and black eye from November 10, 2009. Id. The jury watched video interviews of KS and CJ from the day they reported to the Sheriff's Department and from a month after reporting the allegations. See Dkt. No. 29-1 at 165-66 (November interview of KS); Dkt. No. 29-2 at 4 (December interview of KS); Dkt. No. 29-2 at 55 (November interview of CJ); Dkt. No. 29-2 at 55-56 (December interview of CJ). The jury heard in-person testimony from KS and CJ. Dkt. No. 29-2 at 11-97. KS testified about an incident where, after being locked out of the house, the petitioner blamed KS and “smashed [her] against the door.” Dkt. No. 29-2 at 16. She testified about a time the petitioner “was putting his hand on [CJ]'s leg and like rubbing against it, and she told him not to and he got really mad and smacked-um hit her[.]” Id. at 17. She testified that she saw the petitioner with a gun and that he put the gun to everyone's head. Id. at 17. She testified that there was a time that CJ wet the bed and that the petitioner made CJ suck half of it up with her mouth. Id. at 18-19.

         CJ testified that she lived with the petitioner for three years and did not like living with him. Id. at 59. She testified that “[the petitioner] would make me sleep with him at night. He would make me take a shower with him. He would always touch me.” Id. at 60. She testified that the petitioner showed her his penis; “he would walk around the house naked always wave it in my face and tell me to put it in my mouth.” Id. at 61. She testified about an “incident that happened on the futon in Wisconsin” where she “had an accident and [the petitioner] made me suck it up with my mouth.” Id. She testified that she witnessed the petitioner putting a “sawed-off shotgun” to KS's and Tayler Riker's head. Id.

         The jury heard from Rita Kadamian, a nurse practitioner who physically examined CJ and KS on November 10, 2009. Dkt. No. 29-3 at 7-8. She testified that both girls had normal physical and sexual exams (with the exception of one bruise on CJ's back consistent with kicking), but that 95% of all child victims present with normal exams. Id. at 9-11. The jury heard from Dr. Melissa Westendorf, a clinical and forensic psychologist who conducted interviews with both girls in December of 2009. Id. at 22. She testified that she found the girls to have anxiety, excessive worry, symptoms of anxiety (such as bed wetting) and symptoms of depression. Id. at 24.

         The jury heard from Tayler Riker, who explained that in the week the family had been in Wisconsin, things escalated beyond their normal level. Id. at 86. She testified that after the family got locked out of their house on November 5, 2009, the petitioner got angry and “slammed [KS's] head against the door and he called her a bitch.” Id. She stated the petitioner proceeded to beat and choke her (Tayler) as well. Id. She testified that she bled from this beating and hid her bloody shirt under the sink. Id. at 92. The state presented the shirt as well as a picture of where law enforcement found the shirt-under the vanity. Id. Tayler also testified about an incident on November 7, 2009, where she saw the petitioner “play wrestling” with CJ and “feeling her up.” Id. at 94. She said that when CJ asked him to stop, and “knuckled him” on the top of his head, the petitioner got angry and began punching CJ in the head. She testified that before CJ could run out of the room, CJ urinated on the futon. Id. at 96. Tayler said that when the petitioner discovered the urine on the futon, he “told [CJ] to suck it up with her mouth.” Id. at 97.

         Tayler testified about an incident that occurred while driving; she said that while CJ was seated in the front passenger seat, Tayler saw the petitioner “tr[ying] to caress the inner part of [CJ's] left leg.” Id. at 99. CJ told him to stop and eventually climbed into the back seat with the rest of the family. Id. at 99-100. The next day, Tayler testified that the petitioner became upset about the house being messy and threatened Tayler: “if shits not different tomorrow that's it.” Id. at 102. She testified that she feared he would kill her. Id. As part of this tirade, Tayler stated the petitioner broke the TV and VCR. Id. at 103.

         Finally, Tayler testified that her husband brought a gun to Wisconsin from Utah. Id. at 107. When shown a picture of the gun eventually recovered from the residence, she stated her belief that it was a shotgun and that she would not know the difference between a shotgun and rifle. Id. at 107-108. She described an incident where the petitioner pointed the gun at the back of her head, the back of KS's head, and the back of her son SR's head. Id. at 108-09. She testified that she heard him pull the trigger while the gun was behind KS's head. Id. at 110. She testified that she was certain the gun was not loaded, but went to the police because of the petitioner's access to the gun, because things were escalating and because she “really believed [the petitioner] would kill me.” Id. at 111.

         The jury also heard from Peter Zurawski, who moved into the Riker family's residence after Tayler moved out and found a gun lodged behind the furnace. Id. at 171. Deputy Sheriffs testified about making phone contact with the petitioner on the day of his arrest and about following up with Zurawski as to where he found the gun. Id. at 180-188. The jury heard from the investigator who located the petitioner at his residence using the petitioner's cell phone signals. Id. at 192. The same investigator testified about executing a search warrant of the residence and finding a bloody blue shirt, a broken TV and a broken VCR. Id. at 194-97. He testified that they did not find a gun, despite an extensive search. Id. at 198. The jury heard from Nicholas Homa, a forensic scientist with the Milwaukee Crime Lab, who testified that swabs taken from the blue shirt indicated that it was Tayler Riker's blood. Dkt. No. 29-4 at 3-4. Last, investigator Muller testified upon re-call that he performed an e-trace of the gun, which revealed its original owner to reside in Utah. Id. at 17.

         Before presenting witnesses, the petitioner moved to dismiss all counts. Dkt. No. 29-4 at 25. His counsel focused particularly on the “causing mental harm to a child” counts, contending that “there's been no proof whatsoever of any evidence showing that my client caused mental harm to these children in Wisconsin.” Id. at 25. More generally, he argued that the witnesses' testimony was “all over the map in all days, times and locations. Specific locations however as to what happened in Wisconsin are woefully lacking.” Id. at 26. The trial court reserved ruling. Id. at 29.

         The petitioner presented testimony from Dr. Thomas Schacht, a professor of psychiatry and behavioral science at the College of Medicine at East Tennessee State University Id. at 32. Dr. Schacht reviewed the video interviews of the child victims and offered various criticisms of the interviewers' techniques; for example, the interviewers did not (but, Schacht asserted, should have) explored the alternative hypothesis that the mother had coached her children. Id. at 49-50. Dr. Michael Kula, a clinical psychologist, also testified for the defense. Id. at 104. He offered criticisms of the interviewing techniques and testified that based on his review of the videotapes, KS “did not experience the any [sic] type of significant emotional affect or stress that would be diagnosable such as a major depressive disorder or generalized anxiety disorder.” Id. at 122. He further opined that he did not believe the petitioner caused either daughter any significant or substantial harm. Id. at 130.

         The petitioner did not testify. Id. at 154. In cross-examination and closing argument, the petitioner's counsel argued that Tayler Riker was on a mission to get rid of her husband and had coordinated the children's reports of abuse. Dkt. No. 29-5 at 45. Through Tayler, the petitioner introduced almost forty photos and several home videos taken during the trip to Wisconsin and in Wisconsin; he argued that none of these photos or videos showed the children as being unhappy or revealed evidence of abuse. Dkt. No. 29-3 at 149-50. He argued that the children's testimony had been inconsistent-that it would be impossible for the jury to conclude beyond a reasonable doubt that all these incidents happened in Wisconsin (as opposed to Utah). Dkt. No. 29-5 at 54-57. He argued that although the child victims regularly attended school, none of their teachers or other school employees had ever reported suspicious injuries or misbehavior. Id. at 53. He also argued that had the abuse been as severe as the victims claimed, there would have to have been physical evidence to corroborate that testimony; because none existed, he argued, the jury could not (and should not) believe the victims. Id. at 57.

         The jury returned guilty verdicts on all sixteen counts. Dkt. No. 29-5 at 122-25.

         2. Sentencing

         The petitioner chose not to attend his sentencing. Dkt. No. 29-6. His attorney reported that upon the attorney's arrival at the petitioner's place of custody, he'd asked a guard to call the petitioner; the petitioner had responded by thanking counsel for coming, but indicating that he “wasn't interested in being with [counsel] or participating in this sentencing.” Id. at 2. Counsel indicated that the petitioner had relayed that message twice. Id.

         The sentencing judge (a different judge from the one who presided over the trial) sentenced the defendant to ten years of initial confinement on Count One; fifteen years of initial confinement on Count Two; fifteen years of initial confinement on Count Three; five years of initial confinement on Count Four; one year of initial confinement on Count Five; seven years of initial confinement on Count Six; seven years of initial confinement on Count Seven; seven years of initial confinement on Count Eight; seven years of initial confinement on Count Nine; seven years of initial confinement on Count Ten; seven years of initial confinement on Count Eleven; thirteen and a half years of initial confinement on Count Twelve; thirteen and a half years of initial confinement on Count Thirteen; forty years of initial confinement on Count Fourteen; forty years of initial confinement on Count Fifteen; and five years of initial confinement on Count Sixteen. Dkt. No. 29-6 at 62-66. He ordered these sentences to run consecutively, for a cumulative term of two hundred years of initial confinement. Id. The periods of supervised release attached to each of the periods of initial confinement totaled sixty-nine years. Id.

         3. Appeal

         i. Petitioner's Appellate Arguments

         The petitioner appealed. See Dkt. No. 15-4. He argued that the state presented insufficient evidence to convict him on all three of the first-degree recklessly endangering safety counts, two of the five physical abuse of a child counts, both causing mental harm to a child counts, the repeated sexual assault of a child count and the sexual assault of a child under thirteen count. Dkt. No. 15-4 at 2. He argued that if the court vacated some of his convictions, he was entitled to sentencing on the remaining counts. Id.

         For the recklessly endangering safety counts, the petitioner argued that trial testimony showed that “the gun was not loaded-and everyone, including Riker-knew it. This fact shows that his conduct did not create a risk of death or great bodily harm or evince utter disregard for human life.” Id. at 17. For two of the physical abuse of a child convictions, the petitioner argued that the state had not presented evidence of pain or injury. Id. at 21. For the causing mental harm to a child convictions, the petitioner argued that Dr. Westendorf “could not say to a reasonable degree of certainty that [the petitioner] caused the harm” and that defense expert Dr. Kula testified that “the testing produced scores that were in the subclinical range and did not reveal major depression or generalized anxiety disorders.” Id. at 24. For the repeated acts of sexual assault charge, the petitioner argued that CJ testified she slept with the petitioner voluntarily and CJ's description of their sleeping style (with the petitioner's front facing CJ's back and his hand on her stomach) “failed to meet the jury instruction that required contact with her vagina.” Id. at 26. He also argued that CJ said the petitioner used a bar of soap to touch her-not his hand or fingers. Id. Finally, as to the sexual assault of KS, the petitioner contended the state never established that it happened in Wisconsin during the first week of November 2009. Id. at 28-29.

         ii. Court of Appeals Decision

         On January 28, 2015, the Court of Appeals affirmed the district court. Dkt. No. 15-2. It observed that a jury verdict could be reversed for insufficient evidence only where “the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” Id. at 2 (quoting State v. Poellinger, 153 Wis.3d 493, 501 (1990)).

         Regarding the petitioner's challenge to the reckless endangerment counts, the court observed that a firearm was considered a dangerous weapon even if it was unloaded. Id. at 3 (citing Wis.Stat. §939.22(10)). The court surveyed the trial testimony and concluded that “the jury reasonably could have concluded that this escalation of established abuse-saying he would kill them all, holding a gun to their heads, and pulling the trigger-posed an unreasonable and substantial risk of death or great bodily harm and evinced utter disregard for their lives.” Id. at 4. It had “no trouble” affirming these convictions. Id.

         Regarding the physical abuse of a child counts, the court noted KS's testimony that the petitioner “slammed” her head against the door, causing her to get a “big bump.” Id. at 5. It observed that the statutory definition of physical abuse required proof of physical pain or injury, illness or any impairment of physical condition; it did not require severe harm necessitating medical treatment. Id. (citing Wis.Stat. §939.22(4); Wis JI-Criminal 2109). Regarding the hand-on-CJ's leg incident, the court of appeals quoted CJ's testimony that when “she continued to try and push it away and say no he began punching her leg.” Id. at 6. It remarked “the jury reasonably could have inferred from the testimony that nine-year-old C.J. felt physical pain when a ‘really mad' [petitioner] ‘smacked' or ‘hit' or ‘punched' her in the face and on her leg. This satisfied the element of bodily harm.” Id. at 6.

         Regarding the mental harm to a child counts, the appellate court observed that although Dr. Westendorf opined that CJ and KS's signs of anxiety, depression, and post-traumatic stress disorder “stemmed from before they moved here, ” the jury also heard testimony that the petitioner's outbursts increased to “every single day” in Wisconsin and “were getting more extreme.” Id. at 6-7. The appellate court cited the petitioner's destruction of KS's school materials and forcing CJ to suck up urine with her mouth as evidence that allowed the jury “to conclude that [the petitioner] caused the girls additional mental harm in Wisconsin.” Id. at 6-7.

         Regarding the sexual assault counts, the court relied on CJ's testimony that the petitioner would walk around the house naked, wave his penis in her face and tell her to put it in her mouth. Id. at 7. It wrote “that sexualized conduct provided sufficient evidence from which the jury reasonably could have found that even if he used a bar of soap to touch her vagina in the shower, he did it for purposes of his sexual gratification.” Id. As for the count related to KS, the court rejected the petitioner's argument that KS had not been specific on time-frame. Id. at 8. It concluded that “the jury could have believed K.S.'s testimony about the sexual assault in Wisconsin without believing that it occurred in the summer.” Id. Having rejected each of his arguments, the court affirmed the convictions. Id.

         The Wisconsin Supreme Court declined review of the petitioner's case ...


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